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I 


THE 


CALIFORNIA 


PRACTICE  ACT 


BEING    AN    ACT    ENTITLED 

AN  ACT  TO  REGULATE  PROCEEDINGS  IN  CIVIL  CASES  IN  THE  COURTS  OF  JUSTICE 
IN  THIS  STATE,"  PASSED  APRIL  21),  1851,  AND  AMENDED  MAY  18,  1853; 
MAY  18,  1854;  APRIL  28,  MAY  4,  AND  MAY  7)  1855 ;  PER.  20, 
1857;  MARCH  24,  AND  APRIL  15,  1858; 

ALSO    •     '■ 

'^  An  Act  concerning  the  Courts  of  Justice  of  this  St'afe,  and  Judicial  Officers,'^  passed  May  19, 

18o3;  and,  also,    '■'■An  Act  concerning  Forcible  Entries  and  Unlaivful 

Detainers,"  passed  April  22,  1850. 


Second  Edition,  Kevised  and  Enlarged, 


By    henry    J.    LABATT, 

COtrXSELOK      AT      LAW,      SAN      FRANCISCO,      CAL, 


"Law  Practice  is- imperfect  at  the  best."— rH.  W.  Warner, 


SAN    FRANCISCO: 

WHITTOls^  TOWNE  &  CO.,   PRINTERS  AND  PUBLISHERS, 

CLAY,  SAKSOME  and  COMMERCIAL  STREETS, 
Entrance  on  Clay,  ' 

1858.. 


Entered  according  to  Act  of  Congress,  in  the  year  1856,  by 

HENRY    J.    LABATT, 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Northern  District  of  California 


Entered  according  to  Act  of  Congress,  in  the  year  1858,  by 

HENRY    J.    LABATT, 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Northern  District  of  California 


KASD 
AM 


INTRODUCTION 


TO     THE     FIRST     EDITION. 


In  presenting  this  work  to  the  profession,  the  object  of  the  compiler  has  been  to 
lessen  the  difficulty  experienced  in  the  preparation  and  trial  of  causes,  from  a  want  of 
knowledge  of  our  code  of  civil  practice,  by  attorneys  assembled  here  from  the  various 
States  of  the  Union.  This  difficulty  induced  him  to  collect  such  precedents  as  our 
Courts  had  established,  and  such  others  as  would  prove  useful  in  the  application  of 
the  code. 

Authorities  are  added,  which  have  emanated  from  the  Fourth,  Sixth  and  Twelfth 
Judicial  District  Courts,  and  the  Superior  Court  of  the  City  of  San  Francisco,  which 
will  elucidate  points  of  practice  not  yet  settled  on  appeal  by  the  Supreme  Court. 

By  letter  addressed  to  each  of  the  District  Judges  in  the  State,  they  were  respect- 
fully requested  to  furnish  such  decisions  upon  practice  as  they  had  made,  which  were 
not  adjudicated  upon  in  the  Supreme  Court,  and  such  as  have  been  received  have 
been  given  in  the  following  pages. 

A  copious  index  will  be  found,  refemng  to  each  section,  under  the  head  of  any 
principal  word  or  phrase  therein. 

An  Appendix,  containing  a  digest  of  decisions  on  "  Homestead,"  and  "  Mining  and 
Water  Courses,  in  this  State,  and  the  Kules  of  the  Supreme  Court,  has  been  added, 
as  useful  to  the  profession. 

The  amendments  of  1855  are  incorporated  in  the  body  of  the  Act.  In  the  referen- 
ces to  the  decisions  of  the  Supreme  Court  since  1854,  the  compiler  has  used  the  pam- 
phlet edition  of  the  Sacramento  Union,  which  must  excuse  any  incorrectness  that 
otherwise  might  have  been  avoided. 

HENRY  J.  LABATT. 

San  Francisco,  April,  1856. 


IVi508259 


INTRODUCTION 


TO    THE    SECOND    EDITION 


The  first  edition  of  the  Annotated  Practice  Act  of  California  having  been 
gladly  received  by  the  profession  in  the  State,  it  has  been  deemed  advisable  to  issue 
a  second,  carefully  revised,  in  which  are  incorporated  the  Amendments  to  the  Act  of 
the  Legislatures  of  1857  and  1858,  and  the  decisions  of  the  Supreme  Court  since  April, 
1856,  and  also  the  new  Rules  of  the  Supreme  Court. 

Practice  decisions  have  also  been  supplied  from  the  latest  New  York  Reports, 
con'prising  the  15th  New  York  (1  Smith's  Court  of  Appeals,)  4th  Kernan,  6th  Selden, 
24th  Barbour,  14th  Howard,  6th  Abbott,  5th  Ducr  and  3d  E.  D.  Smith. 

The  District  Court  rulings  heretofore  inserted  have  been  omitted,  as  they  offered 
little  authority,  where  no  opportunity  could  be  had  of  reading  a  full  opinion  thereupon. 

There  is  annexed  the  "Act  concerning  the  Courts  of  Justice  of  this  State,  and  Ju- 
dicial Officers,"  as  also  the  "Act  concerning  Forcible  Entries  and  Unlawful  Detain- 
ers," with  annotations  thereto  of  decisions  rendered. 

The  figures  in  brackets,  succeeding  the  section  number,  denote  the  year  in  which 
the  section  had  been  amended,  and  the  amendments  of  1857  and  1858  arc  in  italic. 

HENRY  J.  LABATT. 

San  Francisco,  May,  1858. 


■  '^'•^.-•.y-i^ 


-^xJ' 


//  ^/ 


/V 


X//A  i<fa^    ^^^^ 


'■}''t 


TABLE  OF  CONTENTS. 


Introduction  to  the  First  Edition, 3 

Introduction  to  thc  Second  Edition, 4 

Judges  and  Terms  of  the  Supreme  Court, 6 

Judicial  Districts  of  the  State, 7 

Terms  of  the  Courts  of  Record  of  the  State, 8 

An  Act  concerning  Courts  of  Justice  and  Judicial  Officers, 10 

An  Act   to   Regulate    Proceedings  in  Civil  Cases  in  the  Courts  of 

Justice  of  this  State, 33 

An  Act  concerning  Forcible  Entries  and  Unlawful  Detainers, 271 

Rules  of  the  Supreme  Court, 279 

Index, 285 


SUPREME    COURT. 


Hon.  DAVID  S.  TERRY,  Chief  Justice, Terra  expires,  1860 

Hon.  peter  H.  BURNETT,  Associate  Justice, Term  expires,  1859 

Hon.  STEPHEN  J.  FIELD,  Associate  Justice, Term  expires,  1864 

Hon.  THOMAS  H.  WILLIAMS, Attorney  General 

CHARLES  S.  FAIRFAX,  Esq., Clerk 

DAVID  T.  BAGLEY,  Esq., Deputy  Clerk 

HARVEY  C.  LEE, Reporter 

BRUCE   HUSBAND,  Esq.,   Dep.  State  Librarian 


The  Terms  of  this  Court  arc  holden  at  the  Capital  of  tiie  State,  (City  of  Sac- 
ramento,) on  tiie  fust  Mondays  in  the  months  of  January,  April,  July  and  October. 


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AN    ACT 

CONCERNING  THE  COURTS  OF  JUSTICE  OF  THIS  STATE 
AND  JUDICIAL  OFFICERS. 

PASSED   MAY   19th,    1853. 

The  People  of  the  State  of  California  re-presented  in   Senate  and 
Assembly,  do  enact  as  follows : 

CHAPTER  I. 

COURTS    OF   JUSTICE    IN    GENERAL. 

1.  The  following  shall  be  the  courts  of  justice  of  this  State :  1st. 
The  supreme  court.  2d.  The  district  courts.  4th.  The  county  courts. 
5th.  The  courts  of  sessions.  6th.  The  probate  courts.  7th.  The 
justices'  courts.     8th.  The  recorders'  courts.    9th.  The  mayors'  courts. 


CHAPTER  II. 

THE    SUPREME    COURT. 

2.     The  supreme  court  of  this  state  shall  consist  of  a  chief  justice 
and  two  associate  justices.     Each  justice  hereafter  elected  or  appointed, 

B 


10  THE   SUPREME    COURT.  §3 

shall  be  commissioned  by  the  governor,  and  before  entering  upon  his 
duties,  shall  take  the  constitutional  oath  of  office. 

3.  The  justices  of  the  supreme  court  shall  be  chosen  at  general 
elections  by  the  qualified  voters  of  the  state.  One  of  the  justices  shall 
be  chosen  at  the  general  election  of  the  year  one  thousand  eight  hun- 
dred and  fifty-three,  and  at  the  general  election  every  second  year 
thereafter,  and  shall  hold  his  office  for  the  term  of  six  years  from  the 
first  day  of  January  next  after  his  election.  The  senior  justice  in 
commission  shall  be  the  chief  justice. 

4.  When  from  any  cause  a  vacancy  shall  occur  in  the  office  of  a 
justice  of  the  supreme  court,  the  governor  shall  fill  the  same  by  granting 
a  commission,  which  shall  continue  until  the  election  and  qualification 
of  a  justice.  A  justice  to  fill  a  vacancy  shall  be  chosen  at  the  first 
general  election  subsequent  to  the  occurrence  of  the  vacancy. 

1.  The  absence  of  a  judge  from  the  state  is  not  such  a  vacancy  as  can  be  supplied  by 
the  executive.     People  v.  Wells,  2  Cal.,  610. 

5.  The  supreme  court  shall  have  appellate  jurisdiction  in  all  cases 
where  the  matter  in  dispute  exceeds  two  hundred  dollars  ;  when  the 
legality  of  any  tax,  toll  or  impost,  or  municipal  fine  is  in  question,  and 
in  all  criminal  cases  amounting  to  felony,  on  questions  of  law  alone. 

1.  This  jurisdiction  docs  not  apply  in  cases  of  misdemeanor  or  crimes  of  a  less  de- 
gree than  felony.     People  v.  Apph'ijate,  5  Cal.,  29,). 

6.  [1854.]  The  supreme  coiu*t  shall  have  jurisdiction  to  review 
upon  appeal : 

1st.  A  judgment  in  an  action  or  proceeding  commenced  in  or  removed 
from  another  court  to  the  district  courts,  or  county  courts,  when  the 
matter  in  dispute  exceeds  two  hundred  dollars  ;  or  when  the  possession 
or  title  of  land  or  tenements  is  in  controversy  ;  or  when  the  legality  of 
any  tax,  toll  or  impost,  or  municipal  fine  is  in  question,  and  to  review 
upon  the  appeal  from  such  judgment,  any  intermediate  order  or  decis- 
ion, involving  the  merits  and  necessarily  aficcting  the  judgment. 

2d.  An  order  granting  or  refusing  a  new  trial,  or  refusing  to  change 
the  place  of  trial  of  an  action  or  proceeding,  after  a  motion  is  made 
therefor  in  tlie  cases  provided  by  law,  or  on  the  ground  that  a  judge  is 
disc|ualified  from  hearing  or  trying  the  same,  or  sustainmg  or  overruling 


§11  THE  SUPREME  COURT.  11 

a  demurrer,  or  affecting  a   substantial  riglit    in  an  action  or   pro- 
ceeding. 

1.  This  jurisdiction  is  in  view  of  the  constitution.     Zander  v.  Coe,  5  Cal.,  230. 

2.  An  appeal  will  not  lie  to  the  supreme  court  unless  the  amount  involved  is  more 
than  $200.     Gordon  v.  Ross,  2  Cal.,  156.     Ford  v.  Smith,  7  ib.,  January  T. 

7.  This  court,  and  each  of  the  justices  thereof,  shall  have  power 
to  issue  all  writs  necessary  or  proper  to  the  complete  exercise  of  the 
powers  conferred  bj  the  constitution,  and  by  this  and  other  statutes. 

8.  [1854.]  This  court  may  reverse,  affirm  or  modify  the  judgment 
or  order  appealed  from,  as  to  any  or  all  the  parties,  and  may,  if  neces- 
sary, or  proper,  order  a  new  trial,  or  the  place  of  trial  to  be  changed ; 
when  the  judgment  or  order  is  reversed  or  modified,  this  court  may 
make  complete  restitution  of  all  property  and  rights  lost  by  the  erro- 
neous judgment  or  order. 

9.  There  shall  be  four  terms  of  this  court  in  each  year,  to  com- 
mence on  the  first  INIonday  of  January,  April,  July  and  October,  and 
to  continue  until  the  fourth  Saturday  thereafter,  inclusive,  unless  all 
the  cases  ready  for  hearing  be  sooner  disposed  of.  If  all  the  cases 
ready  for  hearing  be  not  disposed  of,  the  terms  may  be  continued  as 
much  longer  as  in  the  opinion  of  the  court  the  public  interest  shall 
require. 

10.  [1854.]  The  presence  of  two  justices  shall  be  necessary  for 
the  transaction  of  business,  excepting  such  business  as  may  be  done  at 
chambers  ;  and  the  concurrence  of  two  justices  who  have  been  present 
at,  and  heard  the  arguments,  shall  be  necessary  to  pronounce  a  judg- 
ment. If  two  who  have  been  present  at,  and  heard  the  argument,  do 
not  concur,  the  case  shall  be  reheard. 

11.  The  terms  of  this  court  shall  be  held  at  the  capital  of  the 
state.  If  a  room  in  which  to  hold  the  court  be  not  provided  by 
the  state,  together  with  attendants,  fuel,  lights  and  stationery,  suita- 
ble and  sufficient  for  the  transaction  of  business,  the  court  may  direct 
the  sheriff  of  the  county  in  which  it  is  held  to  provide  such  room,  at- 
tendants, fuel,  lights  and  stationery,  and  the  ex]:)ense  thereof  shall  be 
paid  out  of  the  state  treasury. 


12  THE   DISTRICT   COURTS.  §12 

CHAPTER  III. 

THE   DISTRICT   COURTS. 

12.  [1854,  1855,  1857.]  The  state  shall  be  divided  into  fifteen 
judicial  districts,  ^Yhich  districts  shall  be  numbered,  and  composed  of  the 
several  counties  and  parts  of  counties,  as  follows  : 

1st.  The  first  judicial  district  shall  be  composed  of  the  counties  of 
San  Diego,  Los  Angeles  and  San  Bernardino. 

2d.  The  second  judicial  district  shall  be  composed  of  the  counties  of 
Santa  Barbara  and  San  Luis  Obispo. 

3d.  The  third  judicial  district  shall  be  composed  of  the  counties  of 
Santa  Cruz,  Santa  Clara,  iNIontcrey  and  Alameda. 

4th.  The  fourth  judicial  district  shall  be  composed  of  that  part  of  the 
northern  portion  of  the  city  and  county  of  San  Francisco  lying  north  of 
a  line  described  as  follows  :  commencing  at  the  western  boundary  of 
said  county,  at  a  point  in  a  line  with  the  center  of  Bush  street,  in  said 
city,  thence  running  easterly  in  a  line  with  and  through  the  center  of 
Bush  street,  to  the  center  of  Larkin  street ;  thence  northerly  along  the 
center  of  Larkin  street  to  the  center  of  Pine  street ;  thence  easterly 
along  the  center  of  Pine  street  to  the  center  of  Kearny  street ;  thence 
northerly  along  the  center  of  Kearny  street  to  a  point  in  a  line  with 
the  northern  side  of  the  city  hall  or  court-house  ;  thence  easterly  to 
and  along  the  northerly  line  of  the  city  hall  or  court-house  to  a  point 
sixty-five  feet  from  the  easterly  line  of  Kearny  street,  thence  at  right 
angles  southerly,  to  the  southern  line  of  said  hall  or  court-house  ;  thence 
westerly  along  the  southern  line  of  said  building  to  the  easterly  line  of 
Kearny  street ;  thence  southerly  along  said  eastern  line  of  Kearny 
street  to  the  center  of  Clay  street ;  thence  easterly  along  the  center 
of  Clay  street  to  a  point  in  the  eastern  boundary  line  of  said  county. 

5th.  The  fifth  judicial  district  shall  be  composed  of  the  counties  of 
Calaveras,  Amador,  Tuolumne  and  San  Joaquin. 

Gth.  The  sixth  judicial  district  shall  be  composed  of  the  county  of 
Sacramento. 

7th.  The  seventh  judicial  district  shall  be  composed  of  the  counties  of 
Marin,  Sonoma,  Mendocino,  Napa,  Solano  and  Contra  Costa. 


§15  THE    DISTRICT    COURTS.  13 

8tli.  The  eip;htli  judicial  district  shall  be  composed  of  the  comities  of 
Humholdt,  Klamath  and  Del  Norte. 

0th.  The  ninth  judicial  district  shall  be  composed  of  the  counties  of 
Shasta,  Siskiyou  and  Trinitj. 

10th.  Tlie  tenth  judicial  district  shall  be  composed  of  the  counties 
of  Yuba  and  Sutter. 

11th.  The  eleventh  judicial  district  shall  be  composed  of  the  counties 
of  El  Dorado,  Placer  and  Yolo. 

12th.  The  twelfth  judicial  district  shall  be  composed  of  that  portion 
of  the  city  and  county  of  San  Francisco  which  is  not  included  within  the     - 
limits  of  the  fourth  judicial  district,  as  above  described,  and  of  the 
county  of  San  Mateo. 

13th.  The  thirteenth  judicial  district  shall  be  composed  of  the 
counties  of  Mariposa,  Tulare,  Frezno,  Merced  and  Stanislaus. 

14th.  The  fourteenth  judicial  district  shall  be  composed  of  the  coun- 
ties of  Sierra  and  Nevada. 

15th.  The  fifteenth  judicial  district  shall  be  composed  of  the  counties 
of  Plumas,  Butte,  Colusi  and  Tehama, 

The  jurisdiction  of  the  district  court  of  the  fourth  judicial  district, 
in  the  county  of  San  Francisco,  and  throughout  the  state,  shall  remain 
and  continue  as  heretofore. 

The  jurisdiction  of  the  district  court  of  the  twelfth  judicial  district, 
in  the  county  of  San  Francisco,  and  throughout  the  state,  shall  be  co- 
extensive with  the  jurisdiction  of  the  district  court  of  the  fourth  judicial 
district. 

13.  There  shall  be  a  district  judge  for  each  of  the  judicial  dis- 
tricts. The  courts  held  by  them  shall  be  the  district  courts  of  this 
state. 

14.  The  district  judges  shall  be  chosen  by  the  qualified  electors 

of  their  respective  districts,  at  the  general  election  in  the   year  one      /  i^  6  ^ 
thousand  eight  hundred  and  fifty-eight,  and  at  the  geiieral  election  ^ 

every  six  years  thereafter,  and  shall  enter  upon  their  duties  on  the  first 
day  of  January  subsequent  to  their  election.    >      r^«-7'  «iy«-«<-o^  ^"H*^  ' 

15.  In  case  of  vacancy,  from  any  cause,  in  the  oflBce  of  the  district 
judge,  the  governor  shall  fill  the  same  by  granting  a  commission,  which 
shall  continue  until  the  election  and  qualification  of  a  judge  in  his  place. 


14  THE   DISTRICT   COURTS.  §16 

JO     y   A  judge  to  fill  the  vacancy,  shall  be  chosen  at  the  first  general  election 
subsequent  to  the  occurrence  of  the  vacancy.       C-  ^^    ^i  *-  ^'■"'^'^ 

IG.  Each  district  judge  hereafter  elected  or  appointed,  shall  be 
commissioned  by  the  governor,  and  before  entermg  upon  his  duties, 
shall  take  the  constitutional  oath  of  office. 

17.  [185.3.]  Each  judge  shall  reside  in  his  district,  except  that 
the  judge  of  the  fourth  and  twelfth  judicial  districts  may  reside  in  any 
part  of  the  county  of  San  Francisco,  and  no  person  shall  be  ehgible  to 
the  office  of  district  judge  who  shall  not  have  been  a  citizen  of  the 
United  States  and  a  resident  of  this  state  for  two  years,  and  of  the 
district,  six  months  previous  to  his  election. 

18.  The  jurisdiction  of  these  courts  shall  be  of  two  kinds :  first, 
original ;  second,  appellate. 

1.  Appellate  jurisdiction  held  unconstitutional.  People  v.  Pcra/to,  3  Cal.,  379  ; 
Cauljii'ld  V.  Hudson,  3  Cal.,  389  ;  Ilernandes  v.  Simon,  3  Cal.,  464  ;  lieedv.McCormick, 
4  Cal.,  342  ;    Townsend  v.  Brooks,  5  Cal.,  52;    Reyes  v.  Siin/ord,  5  Cal.,  117. 

19.  Their  original  jurisdiction  shall  extend  to  all  civil  cases  where 
the  amount  in  dispute  exceeds  two  hundred  dollars,  exclusive  of  interest, 
and  to  all  criminal  cases  not  otherwise  provided  for.  In  cases  involv- 
ing the  title  or  possession  of  real  property,  and  in  all  cases  of  fact  joined 
in  the  probate  court,  their  jurisdiction  shall  be  unlimited. 

20.  In  all  the  counties  of  this  state,  the  district  courts  shall  have 
jurisdiction  to  try  and  determine  all  indictments  transmitted  to  them 
from  the  court  of  sessions,  in  the  cases  provided  for  by  law. 

21.  [1854.]  The  appellate  jurisdiction  of  these  courts,  shall  ex- 
tend to  hearing  upon  appeal : 

1st.  A  judgment  of  a  court  of  sessions  in  a  criminal  action. 

2d.  A  jutlgment  of  a  court  of  sessions,  rendered  on  appeal  from  jus- 
tices', mayors',  or  recorders'  courts,  in  a  criminal  action. 

3d.  An  order  or  judgment  of  a  probate  court,  in  the  cases  prescribed 
by  statute. 

Appellate  jurisdiitioii  iield  unconstitutional.     See  Section  18. 

22.  These  courts,  and  the  judges  thereof,  shall  have  power  to  issue 


§27  THE   DISTRICT   COURTS.  15 

all  writs  necessary  or  proper  to  the  complete  exercise  of  the  power  con- 
ferred upon  them  by  the  constitution,  and  by  this  and  other  statutes. 

23.  The  terms  shall  be  held  at  the  county  seats  of  the  several 
counties  ;  if  a  room  for  holding  the  court  be  not  provided  by  the  county, 
together  with  attendants,  fuel,  hghts  and  stationery,  suitable  and  suffi- 
cient for  the  transaction  of  business,  the  court  may  direct  the  sheriti 
to  provide  such  room,  attendants,  fuel,  lights  and  stationery,  and  the 
expenses  thereof  shall  be  a  county  charge. 

24.  The  terms  shall  be  held  until  the  business  of  the  term  is  fully 
disposed  of,  or  until  the  day  fixed  for  the  commencement  of  some  other 
term  in  the  district,  and  may  be  adjourned  from  time  to  time  in  the 
discretion  of  the  court. 

25.  [1858.]  The  district  judges  shall  at  all  reasonable  times,  whe'i 
not  engaged  in  holding  courts,  transact  such  business  at  their  chambers 
as  may  be  done  out  of  court,  at  chambers ;  they  may  try  and  deter- 
mme  writs  of  mandamus,  certiorari  and  quo  warranto,  hear  and  dis- 
pose of  all  motions  and  applications  for  neiv  trials,  and  all  orders  and 
writs  which  are  usually  granted  in  the  first  instance  upon  an  ex  parte 
application,  and  may  in  their  discretion,  also  hear  applications  to  dis- 
charge such  orders  and  writs. 

26.  [1854.]  Whenever  an  action  or  proceeding  is  commenced  in 
a  district  court,  in  which  a  county  court  has  concurrent  jurisdiction,  the 
district  court  may,  if  the  parties  consent,  by  order,  transfer  the  same 
to  the  county  court  of  the  same  county ;  upon  such  transferrence,  the 
county  court  shall  have  and  exercise  over  such  action  or  proceeding, 
the  same  jurisdiction  as  if  originally  commenced  therein. 

27.  A  district  judge  may  hold  a  term  in  any  judicial  district  in 
this  state  upon  the  request  of  the  judge  of  the  district  in  which  such 
term  is  to  be  held ;  and  when  by  reason  of  sickness  or  absence  from 
the  state,  or  from  any  other  cause,  a  term  cannot  be  held  in  a  district 
by  the  judge  thereof,  a  certificate  of  that  fact  shall  be  transmitted  by 
the  clerk  to  the  governor,  who  shall  thereupon  direct  some  other  dis- 
trict judge  to  hold  such  term.  It  shall  be  the  duty  of  the  judge  thus 
directed  to  hold  such  term. 


16  THE  COUNTY  COURTS.  §28 

28.  Each  district  court  shall  have  power  to  make  rules,  not  incon- 
sistent with  the  constitution  and  laws  of  this  state,  for  its  own  government 
and  the  government  of  its  officers,  but  such  rules  shall  not  be  in  force 
until  thirty  days  after  their  adoption  and  publication,  and  no  rule  shall 
be  made  imposing  any  tax  or  charge  upon  any  legal  proceeding,  or 
making  an  allowance  to  any  officer  for  services. 


CILIPTER  IV. 

Sees.  29  to  39  inclusive,  repealed.     Statutes  of  1857,  128. 


CHAPTER  V. 

THE   COUNTY   COURTS. 

40.  There  shall  be  in  each  of  the  counties  of  this  state  a  county 
court,  with  the  jurisdiction  conferred  by  this  chapter. 

41.  The  county  judge  of  each  county  shall  be  the  judge  of  the 
county  court.  The  county  judge  of  each  county  shall,  except  in  the 
cases  otherwise  provided  by  special  statutes,  be  chosen  by  the  electors 
of  the  county  at  the  general  election  in  the  year  one  thousand  eight 
hundred  and  fifty-three,  and  every  four  years  thereafter,  and  shall  enter 
upon  the  duties  of  his  office  on  the  first  Monday  of  April  subsequent  to 
his  election.  Before  entering  upon  his  duties  he  shall  take  the  con- 
stitutional oath  of  office. 

42.  In  case  of  a  vacancy  in  the  office  of  county  judge  the  vacancy 
shall  ]»c  filled  l)y  appointment  from  the  governor  until  the  next  general 
election,  when  a  county  judge  shall  be  chosen  for  tlic  unexpired  term 
of  the  preceding  judge,  and  until  the  new  judge  elected  be  quaUfied. 

43.  The  county  court  shall  have  jurisdiction  to  hear  and  determine 


§47  THE   COUNTY   COURTS.  17 

all  civil  causes  appealed  thereto  from  a  justice's,  mayor's,  or  recorder's 
court,  in  the  county. 

1.  The  autliority  to  try  these  cases  anew  is  the  exercise  of  appellate,  and  not  of  orig- 
inal jurisdiction.     Toicnsend  V.  Brooks,  5  Cal.,  52. 

2.  Appeals  taken  from  a  justice's  court  to  the  county  court  upon  questions  of  law 
alone,  when  reversed  by  the  county  court,  shall  be  tried  anew  in  the  county  court,  and 
not  be  remitted  to  the  justice.     People  v.  Freclon,  7  Cal.,  Oct.  T. 

4-1:.     The  county  court  shall  have  original  civil  jurisdiction  : 

1st.  Of  an  action  to  enforce  the  lien  of  mechanics  and  others. 

2d.  Of  an  action  to  prevent  or  abate  a  nuisance. 

3d.  Of  all  proceedings  against  ships,  vessels  or  boats,  or  against  the 
owners  or  masters  thereof,  when  the  suit  or  proceeding  is  for  the  re- 
covery of  seamen's  wages,  for  a  voyage  performed  in  Avliole  or  in  part 
without  the  waters  of  this  state. 

4th.  Of  proceedings  in  cases  of  insolvency. 

1.  1st,  the  county  courthas  no  jurisdiction  to  enforce  a  mechanic's  lien,  where  the 
amount  in  controversy  exceeds  $200.     Brock  v.  Herrick,5  Cal.,  279. 

2.  4th,  sustained  in  Harper  v.  Freelon,  6  Cal.,  76. 

45.  The  county  court  and  the  judge  thereof  shall  have  power,  at  /^  jTTl. 
chambers,  to  try  and  determine  writs  of  mandamus,  certiorari  and  quo  -        ~Z 
ivai'ranto,  and  to  issue  all  writs  necessary  or  proper  to  the  complete  -^'Vi 
exercise  of  the  powers  conferred  upon  it  by  this  and  other  statutes. 

46.  This  court  shall  hold  a  term  on  the  first  Monday  of  January, 
March,  May,  July,  September  and  November  of  each  year,  which 
shall  continue  until  all  the  business  of  the  court  be  disposed  of. 

Special  acts  have  frequently  been  passed  creating  different  tenns  in  many  counties. 
See  table,  p.  8. 

47.  If  a  room  for  holding  the  court  be  not  provided  by  the 
coimty,  together  with  attendants,  fuel,  hghts  and  stationery,  suita- 
ble and  sufficient  for  the  transaction  of  business,  the  court  may  direct 
the  sheriff  to  procure  such  room,  attendants,  fuel,  lights  and  stationery, 
and  the  expenses  thereof  shall  be  a  county  charge. 

It  is  the  duty  of  county  judges  to  reside  at  the  county  seats  of  tlieir  respective  coun- 
ties, except  in  the  following  :  Yolo,  Alameda,  Contra  Costa,  Tulare, Yuba,  San  Diego, 
Sacramento,  Plumas,  Sutter,  Colusi,  San  Luis  Obispo,  Tehama,  Sun  Mateo,  and 
Santa  Cruz.     Statutes  of  1854,  1855  and  1857. 


18  THE  COURTS  OF  SESSIONS.  §48 


CHAPTER  YI. 

THE  COURTS  OF  SESSIONS. 

48.  There  shall  be  in  each  of  the  counties  of  this  state  a  court  de- 
nominated a  court  of  sessions,  with  the  jurisdiction  conferred  by  this 
chapter. 

49.  The  court  of  sessions  of  each  county  shall  be  composed  of  the 
county  judge,  who  shall  be  the  presiding  judge  thereof,  and  two  jus- 
tices of  the  peace  of  the  county,  as  associate  justices. 

1.  The  courts  can  exercise  none  but  judicial  powers,  and  all  other  powers  confeiTcd 
are  unconstitutional.  Binyoi/ne  v.  Supervisors  of  San  Francisco  county,  5  Cal.,  9 ; 
Phelanv.  Counti/  of  Sun  Francisco,  6  Cal.,  531. 

50.  The  associate  justices  of  the  court  of  sessions  shall  be  chosen 
by  the  justices  of  the  peace  of  the  county.  The  county  judge  shall 
convene,  at  the  county  seat,  on  the  first  Monday  of  the  mouth  subse- 
quent to  the  general  election  in  each  year,  the  persons  elected  as 
justices  of  the  peace  of  the  county  at  said  preceding  general  election  ; 
and  they,  after  being  qualified  and  filing  their  respective  bonds  as  such 
justices,  as  required  by  law,  shall  elect,  by  ballot,  two  of  their  number 
as  associate  justices  of  the  court  of  sessions.  The  county  judge  shall 
preside  over  the  convention,  and  the  county  clerk  shall  be  its  clerk. 
A  majority  of  the  persons  who  have  qualified  and  filed  their  bonds  as 
justices  of  the  peace  of  the  county,  shall  form  a  quorum  for  the  pur- 
pose of  the  election.  A  minute  of  the  proceedings  of  the  convention 
shall  be  entered  in  the  records  of  the  courts  of  sessions.  A  certificate 
of  election  shall  be  given  by  the  county  judge  and  clerk,  under  the 
seal  of  the  court  of  sessions,  to  the  two  persons  who  receive  a  majority 
of  all  the  votes  cast.  Should  there  be  no  election  for  associate  justices 
held  at  the  time  above  prescribed,  the  county  judge  shall  at  any  time 
be  authorized  to  call  an  election  for  such  purpose,  by  giving  ten  days' 
notice  thereof, 

1.  The  presence  of  the  county  judge  and  clerk  of  the  convention  is  not  essential,  and 
if  they  refuse  to  attend,  tlie  election  by  the  justices  will  still  be  valid.  Gorham  \. 
VamjMI,  2  Cal.,  135. 


§55  THE  COURTS  OF  SESSIONS.  19 

2.  The  court  of  sessions  cannot  be  liolden  by  the  county  judge  and  one  associate  jus- 
tice; there  must  be  the  county  judge  and  two  associate  justices  to  constitute  the  court. 
People  \.  Ah  Chumj,  5  Cal.,  103. 

51.  If  the  justices  of  the  court  of  sessions,  or  either  of  them,  be 
absent  at  a  term  of  a  court  of  sessions,  or  the  office  of  those  justices, 
or  either  of  them,  be  vacant,  the  county  judge  shall  supply  the  vacancy 
or  deficiency  for  the  term,  by  designating  the  requisite  number  to  form 
the  court  from  the  justices  of  the  peace  of  the  county. 

62.     [1854.]  The  courts  of  sessions  shall  have  jurisdiction  : 

1st.  To  inquire,  by  the  intervention  ofca  grand  jury,  of  all  public 
offenses  committed  or  triable  in  its  county^V^^--'^---'-^  '^^-<)  ^^  ^  M^^^.i^z)-^.^ 

2d.  To  try  and  determine  all  indictments  found  therein,  for  all  public 
offenses,  except  murder,  manslaughter  and  arson.  e^^-^tL  /\  '  a  0  cJ 

3d.  To  hear  and  determine  appeals  from  justices',  mayors'  and  re- 
corders' courts,  in  cases  of  a  criminal  nature. 

1 . 3d.   This  appellate  power  declared  unconstitutional.  People  v.  Fowler,  8  Cal.,  Jan.  T. 

53.  [1854.]  When  an  indictment  is  found  in  the  court  of  sessions 
for  murder,  manslaughter,  or  arson,  it  shall  be  transmitted  by  the  clerk 
to  the  district  court  sitting  in  the  county,  for  trial ;  except  when  the  in- 
dictment is  found  against  a  person  holding  the  office  of  district  judge, 
when  it  shall  be  transmitted  to  the  district  court  of  such  other  district 
as  the  court  of  sessions  may  direct. 

54  [1854.]  Indictments  found  in  the  court  of  sessions  shall  be 
transmitted  to  the  district  court  sitting  in  the  county,  for  trial,  in  the 
following  cases  : 

1st.  \Yhenever  a  judge  or  justice  of  the  court  of  sessions  is  by  law 
disqualified  from  hearing  or  trying  the  same. 

2d.  Indictments  found  agahist  a  member  of  the  court  of  sessions,  or 
any  justice  of  the  peace  of  the  county. 

55.  The  court  of  sessions,  except  in  the  counties  in  which  a  board 
of  supervisors  is  established,  shall  also  have  power  and  jurisdiction  in 
its  county  : 

1st.  To  make  orders  respecting  the  property  of  the  county,  in  confor- 
mity with  any  law  of  this  state,  and  to  take  care  of  and  preserve  such 
property. 


20  THE   COURTS    OF   SESSIONS.  §55 

2d.  To  examine,  settle  and  allow  all  accounts  legally  chargeable 
against  the  county,  and  to  direct  the  levying  such  per  centage  on  the 
assessed  value  of  real  and  personal  property  in  the  county  as  may  be 
authorized  by  law. 

3d.  To  examine  and  audit  the  accounts  of  all  officers  having  the  care, 
management,  collection  and  disbursement  of  any  money  belonging  to 
the  county  or  appropriated  bylaw,  or  otherwise,  for  its  use  and  benefit. 

4th,  To  control  and  manage  public  roads,  turn})ikes,  ferries,  canals 
and  bridges  within  the  county,  where  the  law  does  not  prohibit  such 
jurisdiction,  and  to  make  such  orders  as  may  be  necessary  and  requi- 
site to  carry  its  control  and  management  into  effect. 

5tli.  To  divide  the  county  into  townships,  and  to  create  new  townships 
and  to  change  the  divisions  of  the  same,  as  the  convenience  of  the 
county  may  require. 

6th.  To  establish  and  change  election  precincts. 

7th.  To  control  and  manage  the  property,  real  and  personal,  belong- 
ing to  the  county,  and  to  receive  by  donation  any  property  for  the  use 
and  benefit  of  the  county. 

8th.  To  purchase  any  real  and  personal  property  necessary  for  the 
use  of  the  county  ;  j^fovidecl,  the  value  of  such  real  property  be  previ- 
ously estimated  by  three  disinterested  persons,  to  be  appointed  for  that 
purpose  by  the  district  court  of  the  county. 

Otli.  To  sell  and  cause  to  be  conveyed  any  property  belonging  to  the 
county,  appropriating  the  proceeds  of  such  sale  to  the  use  of  tlie  same. 

10th.  To  cause  to  be  erected  and  furnished  a  court-house,  jail,  and 
such  other  public  buildings  as  may  be  necessary,  and  the  same  to  be 
kept  in  repair  ;  ^nvvided,  that  the  erection  of  such  court-house,  jail, 
and  other  public  buildings,  be  let  out,  after  one  month's  previous  pub- 
lication, in  each  case,  of  a  readiness  to  receive  proposals  therefor,  to 
the  lowest  bidder,  who  will  give  good  and  sufficient  security  for  the 
completion  of  any  contract  which  may  be  made  respecting  the  same. 

lltli.  To  ascertain  and  determine  with  a  jury,  or  by  consent  of  par- 
ties, without  a  jury,  the  just  compensation  to  be  made  to  the  owners  of 
private  property  taken  for  public  use. 

12th,  To  do  and  perform  all  such  other  acts  and  things  as  may  be 
requisite  and  necessary  to  the  full  discharge  of  the  powers  and  jurisdic- 
tion conferred  on  tlic  court. 

1.     All  jiowcrs  wliicli  are  not  jiulicial  arc  unconstitutional,  when  conferred  unon  the 


§60  THE    COUllTS    OF    SESSIONS.  21 

court  of  sessions.     Burgoi/ne  v.  Sujtervisors  of  Sa7i  Francisco  counti/,  5  Cal.  9  ;  Phclan  v. 
County  of  San  Francisco,  6  Cal.,  531. 

2.  Tlic  powers  conferred  on  the  courts  of  sessions  have  been  subsequently  conferred 
on  the  board  of  supervisors  in  each  county.     Statutes  of  1855,  51. 

5Q.  "When  any  bay,  river,  stream,  creek  or  slough  separates  two 
counties,  the  court  of  sessions  of  the  county  lying  on  the  left  bank  de- 
scending such  bay,  river,  stream,  creek  or  slough,  shall  have  the  juris- 
diction of  the  same,  so  far  as  the  control  and  management  of  bridges 
and  ferries  are  concerned,  but  all  sums  paid  for  licenses  to  construct 
any  bridges,  or  to  run  any  ferries  over  such  river,  stream,  creek,  or 
slough,  shall  be  divided  equally  between  the  two  counties. 

57.  All  accounts,  vouchers,  papers,  petitions  and  documents  relat- 
ing to  the  business  or  property  of  the  county,  shall  be  appropriately 
arranged  under  their  several  heads,  filed  in  the  office  of  the  county 
clerk,  and  preserved  separate  from  the  papers  and  documents  of  the 
court,  as  a  court  having  criminal  jurisdiction. 

58.  The  orders,  judgments  and  proceedings  of  the  court  when  sit- 
ting for  the  transaction  of  county  business  shall  be  entered  by  the  clerk, 
in  separate  books  to  be  kept  for  that  purpose. 

59.  [1854, 1855.]  A  term  of  the  court  of  sessions  shall  be  held  at 
the  county  seat  in  each  county  on  the  first  Monday  of  February,  April, 
June,  August,  October  and  December  of  each  year,  excepting  the 
county  of  Calaveras,  where  the  terms  of  said  court  shall  be  held  on  the 
second  Monday  of  January,  March,  May,  July,  September  and  No- 
vember, and  excepting  also  the  county  of  Placer,  where  the  terms  of 
said  court  shall  be  held  on  the  second  Monday  of  February,  IMay,  Au- 
gust and  November  in  each  year,  and  shall  continue  until  the  com- 
mencement of  the  next  term,  unless  all  the  business  of  the  court  be 
sooner  disposed  of.  Special  terms  of  the  court  may  also  be  held  when- 
ever, in  the  opinion  of  the  county  judge,  the  pubhc  interests  require 
the  same. 

Special  acts  have  frequently  been  passed  creating  different  terms  in  many  counties. 
See  table,  p.  8. 

(30.  Until  a  court-house  be  erected  for  the  county,  this  court  may 
direct  the  sheriff  to  furnish  a  suitable  room  for  holding  the  court,  and 
the  expenses  thereof  shall  be  a  county  charge.     This  court  may,  also, 


22  THE  PROBATE  COURT.  §61 

at  any  time,  direct  the  sheriff  to  furnish  attendants,  fuel,  lights  and 
stationery  suitable  and  sufficient  for  the  transaction  of  business,  and 
the  expenses  thereof  shall  be  a  county  charge. 


CHAPTER  VII. 


THE    PROBATE    COURT. 


Gl.  There  shall  be  in  each  county,  a  probate  court  with  the  juris- 
diction conferred  by  this  chapter. 

62.  The  county  judge  of  each  county  shall  be  the  judge  of  the 
probate  court. 

63.  The  probate  court  shall  have  power  to  open  and  receive  the 
proof  of  last  wills  and  testaments,  and  to  admit  them  to  probate  ;  to 
grant  letters  testamentary,  of  administration  and  of  guardianship,  and 
to  revoke  the  same,  for  cause  shown  according  to  law  ;  to  compel  ex- 
ecutors, administrators  and  guardians  to  render  an  account  when  re- 
quired, or  at  the  period  fixed  by  law  ;  to  order  the  sale  of  property  of 
estates  or  belonging  to  minors  ;  to  order  the  payment  of  debts  due  by 
estates ;  to  order  and  regulate  all  partitions  of  property  or  estate  of 
deceased  persons ;  to  compel  the  attendance  of  witnesses  ;  to  appoint 
appraisers  or  arbitrators ;  to  compel  the  production  of  title  deeds,  pa- 
pers or  other  property  of  an  estate  or  of  a  minor ;  and  to  make  sucli 
other  orders,  as  may  be  necessary  and  proper,  in  the  exercise  of  the 
jurisdiction  conferred  upon  the  probate  court. 

64.  The  county  judge  shall  have  power  in  vacation  to  appoint  ap- 
praisers, to  receive  inventories  and  accounts  to  be  filed  in  his  court ; 
to  susi»cnd  tlie  powers  of  executors,  administrators,  or  guardians  in  tlie 
cases  allowed  by  law  ;  to  grant  special  letters  of  administration  or 
guardiansliip  ;  to  approve  claims  and  bonds,  and  to  direct  the  issuance, 
from  this  court,  of  all  writs  and  process  necessary  in  the  exercise  of 
his  powers  as  probate  judge. 


§67  justices'  courts.  23 

65.  The  county  judge  of  the  county  of  San  Francisco  shall  hold  a 
probate  court  at  the  city  of  San  Francisco,  on  the  third  Monday  of 
January,  March,  May,  July,  September  and  November ;  provided, 
that  each  term  of  said  court  shall  continue  until  the  commencement  of 
the  next  term,  unless  all  the  business  of  the  court  be  sooner  disposed  of. 
In  the  other  counties  of  the  state,  the  county  judge  shall  hold  a  pro- 
bate court  on  the  fourth  Monday  of  each  month. 

Special  acts  have  fretjuently  been  passed  creating  different  terms  in  many  counties. 
See  table,  p.  8. 


CHAPTER  yill. 

justices'  courts. 

QQ).  The  courts  held  by  justices  of  the  peace  in  this  state  shall  be 
denominated  justices'  courts,  and  shall  have  the  jurisdiction  conferred 
by  this  chapter,  but  nothing  contained  in  this  chapter  shall  affect  their 
jurisdiction  in  actions  or  proceedings  now  pending  therein,  nor  shall  it 
affect  any  judgment  or  order  already  made,  or  proceedings  already 
taken. 

67.  [1856.]  Justices'  courts  shall  have  jurisdiction  of  the  follow- 
ing actions  and  proceedings : 

1st.  Of  an  action  arising  on  contracts  for  the  recovery  of  money  only, 
if  the  sum  claimed,  exclusive  of  interest,  does  not  exceed  two  hundred 
dollars. 

2d.  Of  an  action  for  damages  for  injury  to  the  person,  or  for  taking 
or  detaining  personal  property,  or  for  injuring  real  or  personal  prop- 
erty, if  the  damages  claimed  do  not  exceed  two  hundred  dollars. 

3d.  Of  an  action  for  a  fine,  penalty  or  forfeiture,  not  exceeding  two 
hundred  dollars,  given  by  statute  or  the  ordinance  of  an  incorporated 
city. 

4th.  Of  an  action  upon  a  bond  conditioned  for  the  payment  of  money 
not  exceeding  two  hundred  dollars,  though  the  penalty  exceed  that 
sum,  the  judgment  to  be  given  for  the  sum  actually  due  ;  when  the 


24  justices'  courts.  §68 

payments  arc  to  be  made  by  instalments,  an  action  may  be  brought  for 
each  instahncnt  as  it  becomes  due. 

5th.  Of  an  action  upon  a  surety  bond  or  undertaking  taken  by  them, 
though  the  penalty  exceed,  if  the  amount  claimed  does  not  exceed  two 
hundred  dollars. 

Gth.  Of  an  action  for  the  foreclosure  of  any  mortgage,  or  the  enforce- 
ment of  any  lien  on  real  or  personal  property,  -svhen  the  debt  secured 
docs  not  exceed,  exclusive  of  hiterest,  two  hundred  dollars. 

7th.  Of  an  action  to  recover  the  possession  of  personal  property  -when 
the  value  of  such  property  does  not  exceed  two  hundred  dollars. 

8th.  To  take  and  enter  judgment  on  the  confession  of  a  defendant 
when  the  amount  confessed  does  not  exceed  two  hundred  dollars. 

9th.  Of  an  action  for  a  forcible  or  unlawful  entry  upon,  or  a  forcible 
or  unlawful  detention  of,  lands,  tenements  or  other  possession. 

10th.  Of  an  action  to  determine  the  right  to  a  mining  claim,  and  for 
damages  for  injury  to  the  same,  when  the  damages  claimed  do  not  ex- 
ceed two  hundred  dollars. 

11th.  Of  proceedings  respecting  vagrants  and  disorderly  persons. 

68.  [1856.]  The  jurisdiction  conferred  by  the  last  section  shall 
not  extend,  however  : 

1st.  To  a  civil  action  in  which  the  title  to  real  property  shall  come  in 
question. 

2d.  N(jr  to  an  action  or  proceeding  against  ships,  vessels  or  boats, 
or  against  the  owners  or  masters  thereof,  when  the  suit  or  proceeding 
is  for  the  recovery  of  seamen's  wages  for  a  voyage  performed  in  whole 
or  in  part  without  the  waters  of  this  state. 

69.  [1855.]  These  courts  shall  also  have  jurisdiction,  except  Avithin 
the  limits  of  the  city  of  San  Francisco,  of  the  following  public  oftenscs 
committed  within  the  respective  counties  in  which  such  courts  are 
established  : 

1st.  Petit  larceny.    . 

2d.  Assault  and  battery,  not  charged  to  have  been  committed  upon 
a  public  officer  in  the  discharge  of  his  duties,  or  with  intent  to  kill. 

8d.  Breaches  of  the  peace,  riots,  affrays,  committing  a  wilful  injury 
to  property ;  and  all  misdemeanors,  punishable  by  fine,  not  exceeding 
five  hundred  dollars,  or  imprisonment  not  exceeding  six  months,  or  by 
both  such  fine  and  imprisonment. 


§73  KECORDEIIS'    COUllTS.  25 

70.  There  shall  be  no  terms  in  justices'  courts  ;  these  courts  shall 
always  be  open. 

71.  Justices  of  the  peace  shall  hold  their  offices  for  one  year,  and 
until  their  successors  are  elected  and  qualified.  They  shall  be  chosen 
by  the  electors  of  their  respective  townships  or  cities  at  the  general 
election  in  the  year  one  thousand  eight  hundred  and  fifty-three,  and  at 
the  general  election  every  year  thereafter,  and  shall  enter  upon  their 
duties  on  the  first  Monday  of  the  month  subsequent  to  their  election. 
Whenever  a  vacancy  shall  occur  in  the  office  of  a  justice,  by  death,  res- 
ignation or  otherwise,  a  special  election  may  be  ordered  by  the  county 
judge  to  supply  such  vacancy.  The  justice  elected  to  supply  a  vacancy 
shall  hold  his  office  only  for  the  unexpired  term  of  his  immediate  pred- 
ecessor. Each  justice,  before  entering  upon  the  discharge  of  his 
duties,  shall  take  the  constitutional  oath  of  office,  and  shall  execute  a 
bond  to  the  state  in  the  sum  of  five  thousand  dollars,  conditioned  for 
the  faithful  performance  of  his  duties,  and  file  the  same  with  the  county 
clerk. 

1.  Justices  of  the  peace  in  San  Francisco  county,  hold  their  offices  for  two  years. — 
Consolidation  act,  statutes  of  1856,  147,  §6. 


CHAPTER  IX. 

recokder's   court. 


72.  The  recorders'  courts  which  are  already  established,  or  which 
may  hereafter  be  established,  in  any  incorporated  city  of  this  state,  shall 
have  jurisdiction : 

1st.  Of  an  action  or  proceeding  for  the  violation  of  any  ordinance  of 
their  respective  cities. 

2d.  Of  an  action  or  proceeding  to  prevent  or  abate  a  nuisance  within 
the  limits  of  their  respective  cities. 

3d.  Of  proceedings  respecting  vagrants  and  disorderly  persons. 

73.  The  recorders'  courts  already  established,  or  Avhich  may  here- 
after be  established,  shall  also  have  jurisdiction  of  the  following  pubHc 
offenses  committed  in  their  respective  cities  : 

1st.  Petit  larceny, 
c 


26  recorders'  courts.  §74 

2cl.  Assault  and  battery,  not  charged  to  have  been  committed  upon 
a  public  oflficer,  in  the  execution  of  his  duties,  or  with  intent  to  kill. 

3d.  Breaches  of  the  peace,  riots,  afirays,  committing  willful  injury 
to  property  and  all  misdemeanors  punishable  by  fine  not  exceeding  five 
hundred  dollars,  or  imprisonment  not  exceeding  three  months,  or  by 
both  such  fine  and  imprisonment. 

74.  A  recorder's  court  shall  be  held  by  a  judge,  who  shall  be  des- 
ignated as  the  "  Recorder  of  the  City  ;"  and  said  court  shall  be  held 
at  such  place  in  the  city  within  which  it  is  established,  as  the  govern- 
ment of  such  city  may  by  ordinance  direct. 

75.  The  recorders  shall  be  chosen  by  the  electors  of  their  respec- 
tive cities,  on  a  day  to  be  fixed  by  the  government  of  such  cities,  and 
shall  hold  their  offices  for  one  year,  unless  a  longer  period  be  fixed  in 
the  acts  incorporating  such  cities,  in  which  case,  for  such  period  fixed. 
Before  entering  upon  their  duties  they  shall  take  the  constitutional 
oath  of  office. 

76.  The  recorders  shall  receive  a  compensation  to  be  fixed  by  the 
charter,  or  when  not  so  fixed,  by  the  government  of  their  respective 
cities,  to  be  paid  by  such  cities  quarterly,  in  ec^ual  proportions.  Such 
compensations  shall  not  be  increased  or  dimhiishcd  during  the  period 
for  which  they  arc  elected. 

77.  The  recorders  shall  possess  the  powers  and  exercise  the  du- 
ties of  committing  magistrates,  in  the  criminal  cases  in  which  the 
courts  held  by  them  have  no  jurisdiction  by  this  act ;  and  as  such 
magistrates,  they  may  examine,  commit  or  discharge,  all  persons 
brought  before  them,  as  the  justice  of  the  case  may  require. 

78.  Recorders  and  recorders'  courts  may  issue  all  process,  writs 
and  warrants,  and  may  make  any  and  all  orders  necessary  and  proper 
to  the  complete  exercise  of  their  powers. 

79.  There  shall  be  no  terms  in  recorders'  courts.  These  courts 
shall  always  be  open. 


§84  mayors'  courts.  27 


CHAPTER  X. 
mayors'  courts. 

80.  The  mayors'  courts  which  are  ah-eadj  established,  or  which 
may  hereafter  be  estabhshed  in  any  incorporated  city  of  this  state, 
shall  have  the  same  jurisdiction  of  actions  and  of  public  offenses  com- 
mitted in  their  respective  cities,  which  is  conferred  by  this  act  upon 
recorders'  courts. 

81.  The  mayors  of  incorporated  cities,  when  authorized  by  law  to 
hold  a  court  in  their  respecti%^e  cities,  shall  possess  the  same  powers  as 
committing  magistrates,  as  are  conferred  by  this  act  upon  recorders  of 
cities. 

82.  The  mayors'  courts,  and  the  mayors  as  the  judges  of  such 
courts,  may  issue  all  process,  writs  and  warrants,  and  may  make  any  and 
all  orders  necessary  and  proper  to  the  complete  exercise  of  their  powers. 


CHAPTER  XI. 

GENERAL  PROVISIONS  RESPECTING  THE  COURTS  OF  JUSTICE 
AND  JUDICIAL  OFFICERS. 

ARTICLE  I. 

COURTS  OF  RECORD  :  PUBLICITY  OF  THE  PROCEEDINGS  OF  THE 
COURTS  AND  THEIR  INCIDENTAL  POWERS. 

8-3.  The  supreme  court,  the  several  district  courts,  the  several 
county  courts,  the  several  courts  of  sessions,  and  the  several  probate 
courts  of  this  state,  shall  be  courts  of  record. 

84.  The  sittings  of  every  court  of  justice  shall  be  public,  except  as 
s  provided  in  the  next  section. 


28  PARTICULAR    DISQUALIFICATION    OF  JUDGES.  §85 

85.  In  an  action  for  divorce,  the  court  may  direct  the  trial  of  any 
issue  of  fact  joined  therein  to  be  private  ;  and  upon  such  directions  all 
persons  may  be  excluded  except  the  officers  of  the  court,  the  parties, 
their  witnesses  and  counsel. 

86.  Every  court  shall  have  power  : 

1st.  To  preserve  and  enforce  order  in  its  immediate  presence. 

2d.  To  enforce  order  in  the  proceedin<fs  before  it,  or  before  a  person 
or  persons  empowered  to  conduct  a  judicial  investigation  under  its 
authority. 

3d.  To  compel  obedience  to  its  lawful  judgments,  orders  and  process, 
and  to  the  lawful  orders  of  its  judge  out  of  court  in  an  action  or  pro- 
ceeding pending  therein. 

4th.  To  control  in  furtherance  of  justice  the  conduct  of  its  ministe- 
rial officers. 

ARTICLE  II. 

PARTICULAR   DISQUALIFICATION    OF   JUDGES. 

87.  A  judge  shall  not  act  as  such  in  any  of  the  following  cases  : 
1st.  In  an  action  or  procccdhig  to  Avhich  he  is  a  party,  or  in  which 

he  is  interested. 

2d.  When  he  is  related  to  either  party  by  consanguhiity  or  affinity, 
within  the  third  degree. 

3d.  When  he  has  been  attorney  or  counsel  for  either  party  in  the 
action  or  proceeding ;  but  this  section  shall  not  apply  to  the  arrange- 
ment of  the  calendar  or  the  regulation  of  the  order  of  business. 

88.  A  judge  shall  not  act  as  attorney  or  counsel  in  a  court  in 
which  he  is  judge,  or  in  an  action  or  proceeding  removed  therefrom  to 
another  court  for  review,  or  in  any  action  or  proceeding  from  which  an 
appeal  mny  lie  to  his  own  court. 

89.  A  judge  of  the  supreme  court,  or  of  the  district  court,  shall 
not  act  as  attorney  or  counsel  in  any  court  except  in  an  action  or  ])ro- 
ceeding  to  which  he  is  a  party  on  the  record. 

90.  A  judge  or  justice  of  the  peace  shall  not  have  a  partner  acting 
as  attorney  or  counsel  in  any  court  in  this  state. 


§95  JUDICIAL    DAYS    AND    PLACES    OF    HOLDING    COURTS.  29 

91.     A  judge  of  the  supreme  court,  or  of  the  district  court,  or  of 
a  comity  court,  shall  not  absent  himself  from  the  state. 


ARTICLE  III. 

JUDICIAL   DAYS   AND   PLACES    OF    HOLDING   COURTS. 

92.  The  courts  of  justice  may  be  held  and  judicial  business  may 
be  transacted  on  any  day  except  as  provided  in  the  next  section. 

93.  No  court  shall  be  opened  nor  shall  any  judicial  business  be 
transacted  on  Sunday,  on  New  Year's  Day,  on  the  Fourth  of  July,  on 
Christmas  Day,  on  Thanksgiving  Day,  or  on  a  day  in  which  the  gene- 
ral election  is  held,  except  for  the  following  purposes  : 

1st.  To  give,  upon  their  request,  instructions  to  a  jury  then  deliber- 
ating on  their  verdict. 

2d.  To  receive  a  verdict,  or  discharge  a  jury. 

3d.  For  the  exercise  of  the  powers  of  a  magistrate  in  a  criminal 
action,  or  in  a  proceeding  of  a  criminal  nature. 

94.  Every  court  of  justice  except  a  justice's,  mayor's,  or  recorder's 
court,  shall  sit  at  the  county  seat  of  the  county  in  which  it  is  held,  ex- 
cept in  the  cases  provided  in  this  article.  Justices'  courts  shall  be 
held  in  their  respective  townships  or  cities,  and  mayors'  and  recorders' 
courts  in  their  respective  cities  ;  provided,  justices  of  the  peace  for 
townships  of  the  county  of  San  Francisco,  within  the  corporate  limits 
of  the  city  of  San  Francisco,  shall  have  jurisdiction  within  said  corpo- 
rate limits  of  all  actions  and  proceedings  of  which  justices  of  the  peace 
of  said  county  have  or  may  have  by  law  jurisdiction,  whenever  the  par- 
ties to  said  actions  or  proceedings  may  reside  in  said  city  ;  and,  pro- 
vided, that  no  justice  of  the  peace  shall  hold  a  court  in  any  other 
township  of  said  county  or  city  than  the  one  for  which  he  shall  have 
been  elected.  , 

95.  If  no  judge  attend  on  the  day  appointed  for  the  holding  the 
court,  before  noon,  the  sheriff  or  clerk  shall  adjourn  the  court  until  the 
next  day  at  ten  o'clock,  and  if  no  judge  attend  on  that  day  before 
noon,  the  sheriff  or  clerk  shall  adjourn  the  court  until  the  following 


^^U/ 


30  SEALS  OF  THE  COURTS  OF  JUSTICE.  §96 

day  ;  and  so  on  from  day  to  day,  for  one  week.     If  no  judge  attend 
for  one  week,  the  sheriff  or  clerk  shall  adjourn  the  court  for  the  term. 

96.  A  judge  authorized  to  hold  or  preside  at  a  court  appointed  to 
be  held  in  a  city  or  town,  may,  by  an  order  filed  with  the  county  clerk, 
and  published  as  he  may  prescribe,  direct  that  the  court  be  held  or 
continued  at  any  other  place  in  the  city  or  county  than  that  appointed, 
when  war,  pestilence,  or  other  public  calamity,  or  the  dangers  thereof, 
or  the  destruction  of  the  building  appointed  for  holding  the  court,  may 
render  it  necessary  ;  and  may  in  the  same  manner  revoke  the  order, 
and  in  his  discretion  appoint  another  place  in  the  same  city  or  county 
for  holding  the  court. 

97.  When  the  court  is  held  at  a  place  appointed  as  provided  in 
the  last  section,  every  person  held  to  appear  at  the  court,  shall  appear 
at  the  place  so  appointed. 

ARTICLE  IV. 

SEALS  OF  THE  COURTS  OF  JUSTICE. 

98.  Each  of  the  following  courts,  and  no  other,  shall  have  a  seal : 
1.  The  supreme  court.  2.  The  disti-ict  courts.  4.  The  county 
courts.     5.  The  courts  of  sessions.     6.  The  probate  courts.    T^^-^c-cc, 

99.  The  seal  now  used  by  the  supreme  court,  shall  be  the  seal  of 
the  said  court ;  and  where  seals  have  been  provided  for  the  county 
courts,  courts  of  sessions,  and  probate  courts,  such  seals  shall  continue 
to  be  used  as  the  seals  of  said  courts. 

100.  The  several  district  courts,  and  also  the  several  county 
courts,  courts  of  sessions,  probate  courts,  for  which  separate  seals  iiave 
not  been  heretofore  provided,  shall  direct  their  respective  clerks  to 
procure  seals,  which  shall  be  devised  ])y  the  respective  judges  of  such 
courts,  and  shall  have  the  following  inscrii)tions  surrounding  the  same  : 

1st.  For  the  district  courts :  "  District  Court, County,  Cali- 
fornia," inserting  the  name  of  the  county. 

2d.  For  the  county  courts :  "  County  Court, County,  Cali- 
fornia," inserting  the  name  of  the  county. 


§105  MISCELLANEOUS     PROVISIONS.  31 

3cl.  For  the  courts  of  sessions  :  "  Court  of  Sessions, County, 

California,"  inserting  the  name  of  the  county. 

4th.  For  the  probate  courts  :  "  Probate  Court, County,  CaH- 

fornia,"  inserting  the  name  of  the  county. 

101.  Until  the  seals  devised,  as  provided  in  the  last  section,  are 
procured,  the  clerk  of  each  court  may  use  his  private  seal,  whenever 
a  seal  is  required. 

102.  The  clerk  of  each  court  shall  keep  the  seal  thereof. 

103.  The  seal  of  the  court  need  not  be  affixed  to  any  proceedings 
therem,  except : 

1st.  To  a  summons  or  writ. 

2d.  To  the  proof  of  a  will,  or  the  appointment  of  an  executor,  admin- 
istrator or  guardian. 

3d.  To  the  authentication  o5  a  copy  of  a  record,  or  other  proceeding 
of  the  court,  or  an  officer  thereof,  for  the  purpose  of  evidence  in  an- 
other court. 

104.  The  seal  may  be  affixed  by  impressing  it  on  the  paper,  or  on 
a  substance  attached  to  the  paper  and  capable  of  receiving  the  im- 
pression. 

1.  Connolly  v.  Goodwin,  5  Cal.,  220. 


ARTICLE  V. 

MISCELLANEOUS   PROVISIONS    RESPECTING    COURTS   AND 
JUDICIAL    OFFICERS. 

105.  If  an  application  for  an  order,  made  to  a  judge  of  a  court  in 
which  the  action  or  proceeding  is  pending,  be  refused,  in  whole  or  in 
part,  or  be  granted  conditionally,  no  subsequent  application  for  the 
same  order  shall  be  made  to  any  other  judge,  except  of  a  higher 
court ;  provided,  that  nothing  in  this  section  be  so  construed  as  to 
apply  to  motions  refused  for  any  infomiality  in  the  papers  or  proceed- 
ings necessary  to  obtain  an  order. 


32  MISCELLANEOUS    PROVISIONS.  §106 

106.  A  \Tiolation  of  the  last  section  may  be  punished  as  a  contempt ; 
and  an  order  made  contrary  thereto  may  be  revoked  by  the  judge 
who  made  it,  or  vacated  by  a  judge  of  a  court  in  which  the  action  or 
proceeding  is  pending. 

107.  The  judges  of  the  supreme  court,  of  the  district  courts,  and 
of  the  county  courts,  shall  have  power  in  any  part  of  the  state,  and 
justices  of  the  peace  and  recorders  within  their  respective  counties, 
and  recorders  and  mayors,  within  their  respective  cities,  shall  have 
power  to  take  and  certify  : 

1st.  The  proof  and  acknowledgment  of  a  conveyance  of  real  prop- 
erty, or  of  any  other  written  instrument. 

2d.  The  acknowledgment  of  satisfaction  of  a  judgment  of  any  court. 
3d.  An  affidavit  to  be  used  in  any  court  of  justice  of  this  state. 

108.  No  action  or  proceeding  in  a  court  of  justice  shall  be  affected 
by  a  vacancy  in  the  office  of  all  or  any  of  the  judges,  or  by  the  failure 
of  a  term  thereof. 

109.  Every  written  proceeding  in  a  court  of  justice  in  this  state, 
or  before  a  judicial  officer,  shall  be  in  the  English  language  ;  but  such 
abbreviations  as  arc  now  commonly  used  in  that  language  may  be 
used,  and  numbers  may  be  expressed  by  figures  or  numerals,  in  the 
customary  maimer.  In  the  counties  of  San  Luis  Obispo,  Santa  Bar- 
bara, Los  Angeles  and  San  Diego  the  proceedings  may  be  in  the 
English  or  Spanish  languages. 


"J^y^^p^lu'^r^y^   -{  "^    ; 


AN    ACT 

TO  REGULATE  PROCEEDINGS  IN  CIVIL  CASES  IN  THE 
COURTS  OF  JUSTICE  OF  THIS  STATE. 


AS  PASSED  APRIL  29,  1851,  AND  AMENDED  MAT  18,  1853;  MAY  18,  1854;  APRIL  28, 
MAT  4  AND  MAY  7,  1855;  FEBRUARY  20,  1857;  MARCH  24,  APRIL  15,  1858. 


The  practice  act  is  prospective,  and  not  retrospective  in  its  operation. 

People  V.  Hays,  4  Cal.,  127. 


The  People  of  the  State  of  California  represented  in  Senate  and 
Assembly,  do  enact  as  follotvs : 

TITLE    I. 

OF   THE    FORM    OF    CIVIL    ACTIONS,    AND    OF    THE    PARTIES    THERETO. 

1.  There  shall  be  m  this  state  but  one  form  of  civil  action,  for  the 
enforcement  or  protection  of  private  rights,  and  the  redress  or  prevention 
of  private  wrongs. 

1.  "  There  shall  be  but  one  form  of  civil  action,"  extends  only  to  iha  fonn  and  to 
the  pleadings,  dispensing  with  the  technicalities  in  the  statement  of  the  cause  of  action 
and  defense  without  regard  to  ancient  forms,  whether  of  assumpsit,  tresjjass,  or  eject- 
ment, etc.     DeWitt  v.  Hays,  2  Cal.,  463. 

2.  There  is  no  longer  a  distinction  between  suits  at  law  and  in  equity,  either  in  the 
form  of  the  pleadings  or  the  jurisdiction  of  the  court.  General  Mutual  Insurance  Co.  v. 
Benson,  5  Duer,  168. 


34  PARTIES   TO   AX   ACTION.  §2 

3.  Aholisliing  tlie  forms  of  pleading  does  not  disturb  the  common  law  rule  as  to  the 
order  of  introducing  matter  of  defense.     Van  BusLirk  v.  Roberts,  14  How.  P.,  61. 

4.  Tiie  form  of  an  action  is  determined  by  the  matter  set  forth  in  the  complaint,  and 
not  by  the  name  winch  the  plaintiff' may  give  it.     Comes  v.  Harris,  1  Coms.,  223. 

2.  In  such  action  the  party  complaining  shall  be  known  as  the  plain- 
tiff, and  the  adverse  party  as  the  defendant. 

1.  A  person  named  as  defendant  and  not  served  with  process,  is  not  a  party  to  the 
action.     Robinson  v.  Frost,  14  Barb.,  53G. 

3.  Whon  a  question  of  fact  not  put  in  issue  by  the  pleadings,  is  to  be 
tried  by  a  jury,  an  order  for  the  trial  may  be  made,  stating  distinctly 
and  plainly  the  question  of  fact  to  be  tried ;  and  such  order  shall  be 
the  only  authority  necessary  for  a  trial. 

4.  [1854,  1855.]  Every  action  shall  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  as  otherwise  provided  in  this  act ; 
but  in  suits  brought  by  the  assignee  of  an  account,  unliquidated  demand, 
or  thing  in  action  not  arising  out  of  contract,  assigned  subsequently  to 
the  first  day  of  July,  1854,  the  assignor  shall  not  be  a  witness  on  be- 
half of  the  plaintiff". 

1.  The  assignor  cannot  be  a  witness  for  the  assignee.  Jones  \.PoM,  4  Cal.,  14; 
Griffin  v.  Alsop,  ib.,  406  ;   Allen  v.  Citizens'  Steam  Navi)jation  Co.,  6  Cal.,  400. 

2.  The  words,  "assigned  to  Ryan  and  Callaghan,"  and  signed,  "Jon.  Xutt,"  is  a 
good  and  sufficient  assignment.     Ri/an  v.  Maddux,  6  Cal.,  247. 

3.  A  chose  in  action  arising  out  of  a  tort,  is  not  assignable,  and  the  assignor  is  a 
necessary  party  plaintiif.     Oliver  v.  Walsh,  6  Cal.,  456. 

4.  Tlic  objection  to  a  witness  need  not  be  only  in  a  suit  brought  by  the  assignee. 
A  substantial  and  a  formal  assignee  stand  alike  on  the  same  ground.  Adams  v.  Has- 
kell, 7  Cal.,  Oct.  T. 

5.  In  an  action  by  the  assignee  of  a  claim,  a  demand  existing  prior  to  the  assign- 
ment in  favor  of  defendant  and  against  the  assignor,  is  unavailable  as  a  counter  claim. 
It  must  be  pleaded  as  a  defense.  Ferreira  v.  Depew,  4  Abbott,  131  ;  Dillaye  v.  Xilcs, 
ib.,  253. 

6.  A  dormant  ]>artner  is  a  necessary  party  to  an  action  by  the  copartnership.  Secor 
V.  Keller,  4  Ducr,  416. 

7.  Every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  infjrest.  Cam- 
den Bank  V.  Rothjers,  4  How.  Pr.,  63. 

8.  An  endorser  of  negotiable  paper  is  not  an  assignor  within  the  meaning  of  the 
act.     Anderson  v.  Busteed,  5  Duer,  485. 

9.  No  formality  is  necessary  to  effect  the  transfer  of  a  chose  in  action.  Any  trans- 
action between  the  contracting  parties,  which  indicates  their  intention  to  ])ass  tiie  l(one- 
(icial  interest  in  the  instrument  from  one  to  the  other,  is  suthcicut  for  that  purpose ;  a 


§6  PARTIES    TO    AN    ACTION.  35 

debt  or  claim  may  be  assigned  by  parol  as  well  as  by  writing:. — 2  Sto.  Eq.,  §1047. 
lleath  V.  //((//,  4  Taunt.,  .326  ;  Slawjhtrr  v.  Faust,  5  Blackf.,.380  ;  Moiitfpmen/  v  Dilliiuf 
ham,  3  Sme.  &  M.,  647  ;  Hastings  v.  McKiiilei/,  1  E.  D.  Smith,  273  ;  Clark  v.  iJownimj,  ib.' 
406  ;  James  v.  Chalmers,  5  Sand.,  52.  /^.   C  a^  .   J'JLS  . 

5.  In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  bj 
the  assignee  shall  be  Avithout  prejudice  to  any  set-off  or  other  defense, 
existing  at  the  time  of,  or  before  notice  of  the  assignment ;  but  this 
section  shall  not  apply  to  a  negotiable  promissory  note,  or  bill  of  ex- 
change, transferred  in  good  faith,  and  upon  good  consideration  before 
due. 

1.  If  plaintiff  was  assignee  in  good  faith,  and  demanded  goods  within  a  reasonable 
time,  a  notice  of  the  assignment  was  not  necessary  to  charge  defendants,  and  if  they 
deliver  goods  to  an  attaching  creditor  it  is  at  their  own  risk ;  Monjan  v.  Lowe,  5  Cal., 
325. 

2.  What  is  a  good  consideration  in  the  assignment  of  a  promissory  note  ?  Payne 
V.  Bensley,  7  Cal.,  Oct.  T. 

3.  The  admission  or  declarations  of  an  assignor  of  a  chose  in  action,  made  while  ho 
is  the  holder  and  before  assignment,  are  evidence  against  his  assignee,  and  all  claiming 
under  him.— 2  Phill.  Ev.,  (C.  &  H.  Ed.;  note  446,  pp.  387,  644,  663.  Broivti  v.  Ma- 
graw,  12  Sme.  &  M.,  267  ;   Grand  Gulf  Bank  v.  Wood,  ib.,  482. 

4.  The  assignee  of  a  cause  of  action,  assigned  after  action  brought,  is  liable  to  the 
defendant  for  costs,  if  he  (the  assigneee)  proceed  in  the  action  after  the  assignment,  and 
in  such  a  case  he  takes  the  demand  cum  onere,  and  is  liable  for  the  costs  which  had  ac- 
crued before,  as  well  as  those  which  arise  after  the  assignment.  Miller  v.  Franklin,  20 
Wend.,  630. 

5.  Where  an  assignee  having  money  in  bank  makes  an  assignment  for  the  benefit 
of  his  creditors,  soon  after  which,  but  before  notice,  a  bill  held  by  the  bank  fell  due  and 
was  charged  in  the  account  of  insolvent,  held  that  the  assignee  was  entitled  to  re- 
cover it  of  the  bank.     Beckwith  v.  Union  Bank  of  New  York,  5  Selden,  211. 

6.  [1854.]  An  executor  or  administrator,  or  trustee  of  an  ex- 
press trust,  or  a  person  expressly  authorized  by  statute,  may  sue  without 
joining  with  him  the  person  or  persons  for  whose  benefit  the  action  is 
prosecuted.  A  trustee  of  an  express  trust  within  the  meaning  of  this 
section,  shall  be  construed  to  include  a  person  with  whom,  or  in  whose 
name,  a  contract  is  made  for  the  benefit  of  another. 

1.  An  attorney  in  fact  does  not  hold  the  character  of  trustee,  and  is  not  a  neces- 
sary party  to  a  suit  to  represent  the  interest  of  a  principal.     Powell  v.  lioss,  4  Cal.,  197. 

2.  Bonds  taken  in  the  name  of  the  people  of  the  state,  for  the  benefit  of  others 
should  not  necessarily  S^prosecuted  in  the  name  of  the  people,  but  in  that  of  the  party 
in  interest.     Baker  v.  Bartol,  7  Cal.,  April  T. 

3.  An  assignee  of  a  demand  in  trust  to  pay  certain  creditors  of  the  assignor,  and 


36  PARTIES    TO    AN    ACTIOX.  §7 

the  balance  to  the  assifrnor  liimsclf,  may  bi  ing  an  action  in  the  premises  in  his  own 
name.     Lewis  v.  Graham,  4  Abbott,  106. 

4.  Mercantile  factors,  or  agents  doing  business  for  others  but  in  their  own  names, 
are  trustees  of  an  express  trust.     Grinnell  v.  Scmidt,  3  Code  R.,  19  ;  2  Sand.,  706. 

5.  Also,  an  auctioneer.  Boijart  v.  0' Regan,  1  E.  D.  Smith,  590 ;  Minturn  v.  Main, 
3  Seld.,  220. 

7.  ^Vlien  a  married  -woman  is  a  party  her  husband  shall  be  joined 
^Yitll  her  ;  except  that, 

1st.  When  the  action  concerns  her  separate  property  she  may  sue 
alone  ; 

2d.  When  the  action  is  between  herself  and  her  husband  she  may 
sue  or  be  sued  alone. 

1.  1st.  Sustained,  as  referring  to  property  in  the  statute  denoted  separate  property  ; 
it  does  not  refer  to  rents  accruing,  &c.     Snijder  v.  Webh,  S  Cal.,  8.3. 

2.  2d.  The  object  is  to  take  away  the  necessity  of  suing  by  prorhein  ami,  and  being  a 
remedial  statute,  must  be  beneficially  construed.  Kashaw  v.  Kashaw,  3  Cal.,  312  ; 
McKune  v.  McGarvey,  6  Cal.,  497  ;    Guttman  v.  Scannell,  7  Cal.,  April  T. 

3.  A  wife  cannot  sue  alone  to  recover  the  homestead,  it  is  a  joint  estate,  and  both 
husband  and  wife  must  join  in  the  action.     Poole  v.  Genard,  6  Cal.,  71. 

4.  If  the  wife  is  improperly  joined  it  must  be  taken  advantage  of  by  demurrer. 
Tissot  V.  Throckmorton,  6  Cal.,  471. 

5.  In  an  action  to  recover  real  property  when  the  wife  is  the  owner  of  the  fee  and 
the  husband  tenant  by  the  courtesy  initiate,  the  husband  and  wife  may  and  should  join 
in  the  action.     Imjraham  v.  Baldivin,  12  Barb.,  9. 

6.  In  an  action  to  foreclose  a  mortgage  executed  by  husband  and  wife  on  the  lands 
of  the  wife,  both  should  be  sued.  Conde  v.  Shcnhard,  4  How.  Pr.,  75  ;  Conde  v.  Xelson, 
2  Code  R.,  58. 

8.  If  a  husband  and  wife  be  sued  together  the  wife  may  defend  for 

her  own  right, 

1 .  Where  the  defense  of  the  wife  is  a  special  one,  she  can  defend  for  her  own  right 
as  well  when  sued  jointly,  as  if  the  trial  was  separate.     Deuprez  v.  Deuprez,  5  Cal.,  387. 

9.  When  an  infant  is  a  party  he  shall  appear  by  guardian,  who 
may  be  appointed  by  the  court  in  wliich  the  action  is  prosecuted,  or 
by  a  judge  thereof,  or  a  county  judge. 

1.  The  taking  judgment  against  an  infant  as  for  want  of  an  answer  without  ap- 
pointing a  guardian  ad  litem  is  an  irregularity,  and  the  plaintiff's  want  of  knowledge 
that  the  defendant  is  a  minor  will  not  serve  to  make  tlie  judgment  regular.  The  judg- 
ment so  taken  will  be  set  aside  on  motion  and  without  imposing  terms.  AV//077  v. 
KlorL;2  CodcR.,  27. 

10.  The  guardian  shall  be  aj)pointed  as  follows  : 

1st.  When  the  infant  is  })laintiS',  upon  the  application  of  the  infant, 


§14  PARTIES    TO    AN    ACTION.  37 

if  he  be  of  the  age  of  fourteen  years  ;  or  if  under  that  age,  upon  the 
apphcation  of  a  relative  or  friend  of  the  infant ; 

2d.  When  the  infant  is  defendant,  upon  the  apphcation  of  the  infant, 
if  he  be  of  the  age  of  fourteen  years,  and  apply  within  ten  days  after 
the  service  of  the  summons ;  if  he  be  under  the  age  of  fourteen,  or 
neglect  so  to  apply,  then  upon  the  application  of  any  other  party  to  the 
action,  or  of  a  relative  or  friend  to  the  infant. 

I .  Where  the  infant  is  plaintiff"  he  must  have  a  guardian  appointed  before  the  action 
is  I'onuneiiced.     Hill  v.  Thacter,  2  Code  R.,  3. 

11.  A  father,  or,  in  case  of  his  death  or  desertion  of  his  family,  the 
mother  may  maintain  an  action  for  the  injury  or  death  of  a  child  ;  and 
a  guardian  for  the  injury  or  death  of  his  ward. 

12.  All  persons  having  an  interest  in  the  subject  of  the  action,  and 
in  obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs,  except 
when  otherwise  provided  in  this  act. 

1.  Different  persons  owning  separate  tenements,  affected  by  a  nuisance,  may  join 
in  one  action  to  obtain  an  injunction  to  restrain  tiie  continuance  of  it.  Perk  v.  Elder 
3  Sand.,  126. 

13.  Any  person  may  be  made  a  defendant  who  has,  or  claims,  an 
interest  in  the  controversy,  adverse  to  the  plaintiff,  or  who  is  a  neces- 
sary party  to  a  complete  determination  or  settlement  of  the  question 
involved  therein. 

See  Sees.  527,  658. 

1.  The  plaintiff  in  an  ejectment  suit  may  sue  one  or  more  defendants,  and  they 
may  answer  separately,  or  demand  separate  verdicts.      WiiKtns  v.  Christy,  4  Cal.,  70. 

2.  An  appeal  does  not  lie  from  an  order  making  a  new  party  defendant.  Beck  v. 
City  of  San  Francisco,  4  Cal.,  375. 

3.  When  several  defendants  are  sued  on  a  joint  liability,  there  can  only  be  a  joint 
recovci-y  and  judgment;  and  no  judgment  can  be  entered  by  plaintiff,  until  all  the  de- 
fendants served  have  had  the  full  time  to  answer.     Jacques  v.  Greenwood,  1  Abbott,  230. 

4.  Where  a  sheriff  is  liable  for  the  trespass  or  misfeasance  of  his  deputy,  both  may 
be  sued  jointly  for  such  wrongful  act.      Waterhury  v.  Westervelt,  5  Selden,  598. 

14.  Of  the  parties  to  the  action,  those  who  are  united  in  interest 
shall  be  joined  as  plaintiffs,  or  defendants  ;  but  if  the  consent  of  any  one 
who  should  have  been  joined  as  plaintiff  cannot  be  obtained,  he  may 
be  made  a  defendant,  the  reason  thereof  being  stated  in  the  complaint ; 
and  when  the  question  is  one  of  a  common  or  general  interest,  of  many 


38  PARTIES    TO    AX    ACTION.  §15 

persons,  or  when  the  parties  are  numerous,  and  it  is  impracticable  to 
bring  them  all  before  the  court,  one  or  more  may  sue  or  defend  for  the 
benefit  of  all. 

1.  The  provisions  of  this  section  sustained.  Von  Schmidt  y.  Huntinrj1on,\  Cal.,  55  ; 
Bouton  V.  CItij  of  Brookhjn,  15  Barb.,  375  ;  Kirk  v.  Yoitnij,  2  Abbott,  453. 

2.  In  an  action  against  defendants  jointly  indebted,  where  one  only  is  served,  a  sev- 
eral judgment  may  be  entered  against  him.     Iljtghjield  v.  Franklin,  6  Cal.,  607. 

3.  This  provision  is  designed  to  provide  for  a  cla.ss  of  cases  which  occur  in  equity, 
and  is  a  mere  recognition  of  a  rule  administered  by  courts  of  equity,  and  not  to  break 
in  upon  any  rule  of  the  common  law.  Andrews  v.  Moh-lumne  HitI  Co.,  7  Cal,  Jan.  T., 
ib.,  April  T. 

4.  All  the  parties  liaving  a  part  interest  in  the  sul)ject  matter  should  he  joined  as 
plaintiffs,  hut  the  defect  must  be  taken  ^advantage  of  by  answer  or  apportionment  of 
damages,  where  it  does  not  appear  on  the  face  of  the  complaint.  Wliitney  v.  Stark,  7 
Cal.,  Oct.  T, 

5.  When  a  party  rents  property  from  another,  and  there  arc  adverse  claims  to  the 
rent,  he  should  file  his  bill  against  all  adverse  claimants  therefor  and  offer  to  pay  the 
rents  into  court  to  abide  tlic  ultimate  decision  as  to  the  party  entitled  to  them.  M'De- 
vilt  V.  Sullivan,  7  Cal.,  Oct.  T. 

15.  Persons  severally  liable  upon  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange  and  promissory  notes,  and 
sureties  on  the  same  or  separate  instruments,  may  all  or  any  of  them  be 
included  in  the  same  action,  at  th^  option  of  the  plaintiff. 

1 .  This  section  is  in  derogation  of  the  old  rule  of  common  law,  that  one  or  all,  and 
not  any  intermediate  numl)er,  may  be  sued.     Stearns  v.  Agiiirre,  C  Cal.,  183. 

16.  An  action  shall  not  abate  by  the  death,  or  other  disability  of  a 
party ;  or  by  the  transfer  of  any  interest  therein,  if  the  cause  of  action 
survive  or  continue.  In  case  of  the  death  cr  other  disability  of  a  party, 
the  court  on  motion  may  allow'  the  action  to  be  continued  by  or  against 
his  representative  or  successor  in  interest.  In  case  of  any  other  transfer 
of  interest,  the  action  may  be  continued  in  the  name  of  the  original  party ; 
or  the  court  may  allow  the  person  to  whom  the  transfer  is  made  to  be 
substituted  in  the  action. 

1.  The  provisions  of  Sees.  16  and  17  sustained  in  Brooks  v.  Ilatjer,  5  Cal.,  281. 

2.  A  suit  abates  by  sentence  to  State's  Prison.     O'Brien  v.  Ihujan,  1  Duer,  664. 

3.  Leave  of  the  court  to  continue  an  action  under  this  section  is  always  necessary. 
Johnson  v.  Williams,  2  Abbott,  229. 

17.  The  court  may  determine  any  controversy  between  parties  be- 
fore it,  when  it  can  be  done  without  prejudice  to  the  rights  t)f  others. 


§18 


PLACE    OF    TRIAL. 


39 


or  hj  saving  their  rights  ;  but  when  a  complete  determination  of  the 
controversy  cannot  be  had  without  the  presence  of  other  parties,  the 
court  shall  order  them  to  be  brought  in. 

1.  A  court  of  equity  will  not  permit  litigation  by  piece-meal.  The  whole  subject 
matter  and  all  the  parties  should  be  before  it,  and'their  respective  claims  determined 
once  and  forever.      Wilson  v.  Lassen,  5  Cal.,  114. 

2.  When  a  husband  sues  to  recover  a  homestead,  and  the  wife  does  not  appear  in 
the  action,  the  court  should  order  her  to  be  brought  in,  so  that  a  final  decree  may  be  bind- 
ing upon  them.     Mai/.s  v.  Mars/i,  8  Cal.,  Jan.  T. 


TITLE    II. 

OF   THE   PLACE    OF   TRIAL    OF   CIVIL   ACTIONS.    («) 

18.     Actions  for  the  following  causes  shall  be  tried  in  the  county  in 
which  the  subject  of  the  action  or  some  part  thereof,  is  situated,  subject 


(o)  Statutes  of  1854,153;  "Wood's  Digest,  2.39,  Art.  ISf*         <^  •«-^: 

rt  to  «/: 


An  Act  relative  to  transferring  actions  and  proceedinr/s  from  one  com 
passed  May  6,  1854. 

1.  If  an  action  or  proceeding  is  commenced  or  pending  in  a  coiu-t  as  is  hereinafter 
mentioned,  and  the  judge  or  justice  thereof  is  by  law  discpialified  from  acting  as  such, 
or  if  for  any  cause  the  court  orders  the  place  of  trial  to  be  changed,  it  shall  be  trans- 
ferred for  trial  to  a  court  the  parties  rnay  agree  upon,  by  stipulation  in  writing  or  made 
in  open  court  and  entered  in  the  minutes ;  or,  if  they  do  not  so  agree,  then  to  the  near- 
est court  where  the  like  objection  or  cause  for  making  the  order  does  not  exist,  as 
follows  : 

1st.  If  in  the  district  court,  to  another  district  court. 
3d.  If  in  a  county  court,  to  a  district  court,  or  some  other  county  court. 
4th.  If  in  the  probate  court,  to  a  district  court,  or  some  other  probate  court. 
5th.  If  in  a  justice's  court,  to  another  justice's  court  in  the  same  county. 

2.  When  an  order  is  made  transferring  an  action  or  proceeding  for  trial,  the  clerk 
of  the  court,  or  justice  of  the  peace,  shall  transmit  the  pleadings  and  papers  therein  to 
the  clerk  or  justice  of  the  court  to  which  it  has  been  transferred.  If  the  transfer 
is  made  on  the  ground  that  a  judge  or  justice  is  disqualified  from  acting,  the  cost  and 
fees  thereof,  and  of  re-entering  and  filing  the  pleadings  and  papers  anew,  are  to 
abide  the  event  of  the  action  or  proceeding  ;  in  other  cases  they  are  to  be  paid  by  the 
party  at  wliose  instance  the  order  is  made. 

3.  The  court  to  which  an  action  or  proceeding  is  transferred,  shall  have  and  exer- 


40  PLACE    OF    TRIAL.  §18 

to  the  power  of  the  court  to  change  the  place  of  trial,  as  provided  in 
this  act : 

1st.  For  the  recovery  of  real  property,  or  of  an  estate,  or  interest 


cise  over  the  same,  the  like  jurisdiction  as  if  it  had  been  originally  commenced  there- 
in, and  may  by  order  or  execution  enforce  the  judgment. 

4.  In  an  action  or  proceeding  transferred  from  a  probate  court,  or  brought  to  recov- 
er the  possession  of  lands  or  tenements,  (excepting  it  be  in  a  justice's  court)  after  final 
judgment  th(rein,  the  clerk  of  the  court  in  which  it  is  heard  shall  certify  under  his  seal 
of  office,  and  transmit  to  the  court  from  whence  it  is  transferred,  a  full  transcript  of  the 
j)rocee(lings  and  judgment.  The  clerk  receiving  such  transcript,  shall  docket  and 
record  the  judgment  in  the  records  of  his  court,  briefly  designating  it  as  a  judgment 
transferred  from court,  (naming  the  proper  court). 

.").  On  transferring  causes,  the  following  and  no  other  fees  and  costs  shall  be  allowed 
to  tlie  clerks  of  the  court :  for  transmitting  the  pleadings  and  papers  of  a  cause,  the 
sum  of  two  dollars  ;  for  re-entering  and  filing  the  same  pleadings  and  papers  anew, 
three  dollars  ;  for  certifying  and  remitting  a  transcript  and  judgment,  when  retpurcd  to 
be  done  under  this  act,  five  dollars  ;  for  docketing  and  recording  a  transcript  and  judg- 
ment, when  rciiuircd  to  be  done  under  this  act,  five  dollars.  The  last  two  items  may 
be  taxed  in  favor  of  the  successful  party,  and  made  a  part  of  the  judgment  against  the 
other  party,  or  otherwise  ordered  paid,  as  the  court  hearing  the  action  or  proceeding 
may,  b}-  its  order  or  judgment,  direct. 

(j.  If  an  action  or  proceeding  is  transfen-ed  to  a  justice's  court,  the  justice  receiving 
it  shall,  tiirce  days  before  he  proceeds  to  the  trial  thereof,  unless  the  parties  stipulate, 
in  writing,  to  waive  such  notice,  cause  therein  a  notice  in  writing,  to  be  served 
on  the  parties,  which  notice  shall  inform  them  of  the  time  and  place  of  trial ;  in  other 
cases  the  action  of  proceeding  shall  proceed  in  the  manner  provided  for  by  law  in  such 
actions  or  proceedings. 


Statutes  of  1855,  80;  Wood's  Digest,  250,  Aut.  1379. 

An  Act  to  provide  for  cprtifi/inrj  and  removimj  certain  cases  from  the  courts  of  this  State  to 
the  United  States  Circuit  Courts,  and  to  remove  by  writ  of  error  certain  casts  from  the 
Supreme  Court  oftliis  State  to  the  Sujireme  Court  of  the  United  States.  Passed  April 
'M,  1855. 

1.  If  a  suit  be  commenced  in  any  court  of  this  state,  against  an  alien,  or  by  a  citi- 
zen of  this  state  against  a  citizen  of  anotiier  state,  and  the  matter  in  dispute  exceeds  the 
sum  or  value  of  five  hundred  dollars,  exclusive  of  costs,  to  be  made  to  appear  to  the 
satisfaction  of  the  court,  and  the  defendant  shall,  at  the  time  of  entering  his  appearance 
in  such  court  of  this  state,  file  a  i)etition  for  the  removal  of  the  cause  for  trial  into  the 
next  circuit  court  of  the  United  States,  or  district  court  of  the  United  States,  hav- 
ing the  powers  and  jurisdiction  of  a  circuit  court,  to  be  held  in  the  district  where  the  suit  is 
pending,  and  otfer  good  and  sufficient  surety  for  his  entering  in  such  court,  on  the  first  day 
of  its  session,  copies  of  said  |)rocess  against  him,  and  also  for  his  there  a|)pearing  and  enter- 


§18  PLACE   OF   TRIAL.  41 

tlicroin,  or  for  the  determination,  in  any  form,  of  such  right  or  inter- 
est, and  for  injuries  to  real  property : 
2d.  For  the  partition  of  real  property  : 
3d.  For  the  foreclosure  of  a  mortgage  of  real  property. 

1.  1st.  The  county  where  tlie  hind  or  sonic  part  tliercof  is  sitnatctl,  is  tlie  proper 
place  of  trial  to  procure  a  decree  tliat  tlie  conveyance  of  the  hind  was  fraudulent. — 
Wood  V.  Hollister,  3  Abbott,  14. 

2.  3d.    Vullejox.  Randall,  b  C-A.yA&l. 

ing  special  bail  in  the  cause,  if  bail  was  orif^inally  requisite  therein,  it  shall  tlicn  be  the 
duty  of  such  court  of  this  state  to  accept  the  surety  and  proceed  no  further  in  the 
cause  ;  and  all  subsequent  proceedings  which  may  be  taken  or  had  in  such  court  in  con- 
travention of  the  provisions  of  this  section,  shall  be  void  and  of  no  force  or  effect  for 
any  purpose  whatsoever. 

2.  A  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  law  or  equity  of 
this  state  in  wiiich  a  decision  of  the  suit  could  be  iiad,  where  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under  the  United  States, 
and  the  decision  is  against  their  validity  ;  or  where  is  drawn  in  question  the  validity  of 
a  statute  of,  or  an  authority  exercised  under  this  state,  on  the  ground  of  their  being 
repugnant  to  the  constitution,  treaties  or  laws  of  the  United  States,  and  the  decision  is 
in  favor  of  such,  their  validity  ;  or  where  is  drawn  in  question  the  construction  of  any 
clause  of  the  constitution  of  the  United  States,  or  of  a  treaty,  or  of  a  statute  of,  or  com- 
mission held  under  the  United  States,  and  the  decision  is  against  the  title,  right,  privi- 
lege, or  exemption  specially  set  up  or  claimed  by  either  party,  under  such  clause  of  the 
said  constitution,  treaty,  statute  or  commission,  may  be  removed  by  writ  of  error  to 
and  be  re-examined  and  reversed  or  affirmed  in  the  supreme  court  of  the  United  States 
in  the  manner  prescribed  by  the  laws  of  the  United  States  ;  and  upon  tlie  issuance  and 
service  of  such  writ  of  eiTor,  the  chief  justice  or  any  judge  of  the  court,  renderinn-  or 
passing  the  judgment  or  decree  complained  of,  upon  being  applied  to  by  the  plaintiff 
in  error,  or  his  attorney,  sliall  sign  the  requisite  citation  to  the  adverse  party. 

3.  After  a  final  judgment  shall  have  been  rendered  in  any  suit  in  the  highest  court 
of  this  state,  if  the  party  against  whom  the  decision  may  have  been  given,  shall  within 
ten  days  thereafter  file  notice,  in  writing,  with  the  clerk,  of  his  intention  to  remove  the 
cause  by  writ  of  error,  to  the  supreme  court  of  the  United  States,  and  shall  offer  suffi- 
cient security,  to  be  approved  by  the  judge  of  the  supreme  court,  or  any  district  court 
of  this  state,  for  the  prosecution  of  such  writ  of  error,  it  shall  be  the  duty  of  the  said 
court  in  which  such  final  judgment  was  rendered,  or  any  judge  thereof  at  chambers,  to 
stay  all  proceedings  for  such  time  not  exceeding  four  months,  to  be  fixed  by  the  said 
court  or  judge,  as  will  be  sufficient  to  enable  such  party  to  apply  for  and  sen'C  his  writ 
of  error  in  the  mode  prescribed  by  the  laws  of  the  United  States,  and  upon  the  receipt 
of  such  writ  of  error  the  clerk  of  the  court  in  which  the  record  may  be,  and  to  which 
the  writ  may  be  directed,  shall  make  return  thereto,  and  send  up  the  record  or  a  tran- 
script, without  the  necessity  of  any  other  or  further  order  or  authority  whatsoever. 

4.  If  any  judge,  clerk,  or  other  officer  of  any  court  of  this  state,  shall  knowingly  and 
voluntarily  act  in  contravention  of  the  provisions  of  this  act,  he  shall  be  deemed  guiltv 
of  a  misdemeanor  in  office  and  liable  to  impeachment  and  removal  from  office. 

1) 


42  PLACE    OF    TRIAL.  §19 

19.  Actions  for  the  following  causes  shall  be  tried  in  the  county 
■where  the  cause,  or  some  part  thereof,  arose,  subject  to  the  like  power 
of  the  court  to  change  the  place  of  trial : 

1st.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  statute  ; 
except,  that  when  it  is  imposed  for  an  offense  committed  on  a  lake, 
river,  or  other  stream  of  water  situated  in  tAvo  or  more  counties,  the 
action  may  be  brought  in  any  county  bordering  on  such  lake,  river,  or 
stream,  and  opposite  to  the  place  where  the  offense  was  committed  : 

2d.  Against  a  public  oflBcer  or  person  especially  appointed  to  exe- 
cute his  duties,  for  an  act  done  by  him  in  virtue  of  his  office,  or  against 
a  person  who,  by  his  command,  or  in  his  aid,  does  anything  touching 
the  duties  of  such  officer. 

1.  An  action  by  the  people  and  prosecuted  by  the  attorney  general  is  within  the 
second  subdivision  of  this  section. —  People  v.  Hayes,  7  How.  Pr.,  248. 

2.  It  is  upon  trial  that  the  objection  to  the  renuc  must  be  raised,  and  the  omission 
of  the  defendant  to  raise  it  then  must  be  regarded  as  a  waiver  by  which  he  is  concluded. 
—Ilowland  v.  WiUctls,  5  Sand.,  219. 

20.  [1858.]  In  all  other  cases,  the  action  shall  be  tried  in  the 
county  in  which  the  defendants  or  any  one  of  them  may  reside  at  the 
commencement  of  the  action  ;  or,  if  none  of  the  (?^/(?n(?aH^s  reside  in  the 
state,  or^  if  residinij  in  tJiis  state,  the  county  in  which  they  so  reside  be 
unknown  to  the  plaintiff ,  the  same  may  be  tried  in  any  county  which 
the  plaintiff  may  designate  in  his  complaint ;  and  if  any  defendant  or 
defendants  may  he  about  to  dejmrt  from  the  state,  such  action  may  he 
tried  in  any  county  tchere  either  of  the  parties  may  reside,  or  service 
he  had,  subject,  hoAvever,  to  the  power  of  the  court  to  change  the 
place  of  trial,  as  provided  in  this  act. 

1 .  In  an  action  of  the  nature  of  quo  warranto,  tlic  place  of  trial  may  properly  be 
laid  in  any  county  of  the  state. — People  v.  Cofjk,  6  How.  Pr.,  448. 

21.  The  court  may,  on  motion,  change  the  place  of  trial  in  the 
following  cases : 

1st.  When  the  county  designated  in  the  complaint  is  not  the  proper 
county. 

2d.  When  there  is  reason  to  believe  that  an  impartial  trial  cannot 
be  had  therein. 

3d.  "When  the  convenience  of  witnesses  and  the  ends  of  justice 
•would  be  promoted  by  the  change. 


§21  PLACE   OF   TRIAL.  43 

4th.  "\Yhon,  from  any  cause,  the  judge  is  disqualified  from  acting  in 
the  action. 

1.  An  appeal  docs  not  lie  from  an  order  granting  a  change  of  vcnnc. — Juan  v.  In- 
goJdshtj,  6  Cal.,  4.39. 

2.  Tlie  demand  for  change  of  venue  after-an  answer,  may  be  disregarded. — MiUi- 
(jan  V.  Brophij,  2  Code  R.,  118. 

3.  The  demand  may  be  made  simultaneously  with  the  service  of  an  answer. — 
Mairs  V.  Remsen,  3  Code  R.,  138. 

4.  In  general,  all  the  defendants  should  unite  in  making  tlie  motion. — Saill;/  v. 
Hutton,  6  Wend,,  508  ;  Lerjc/  v.  Dorsheim,  19  ib.,  700  ;  Wclliit'j  v.  Sweet,  1  How,  Pr., 
156  ;    Simmons  v.  McDougall,  2  ib.,  77. 

5.  There  is  no  distinction  between  the  terms  "  venue"  and  "  place  of  trial." — Ilinch- 
man  v.  BntJer,  7  How.  Pr.,  462. 

6.  1st.  After  answer  is  filed  it  is  too  late  to  raise  objections  as  to  venue  m  the 
county. — Tooms  v.  Randall,  3  Cal.,  438  ;  Reyes  v.  Sanford,  5  ib.,  117  ;  Pearkcs  v.  Freer, 
8  Cal.,  April  T. 

7.  2d.  The  granting  of  a  change  of  venue  is  discretionary  with  the  court  below, 
subject  to  review  only  in  cases  of  gross  abuse.  The  affidavits  should  state  sufficient 
facts  to  draw  from  the  court  its  own  inference  as  to  the  impartial  trial. — Sloan  v.  Smith, 
3  Cal.,  410. 

8.  3d.  In  an  affidavit  for  change  of  venue,  the  defendant  must  swear  that  earh  and 
and  every  one  of  the  witnesses  above  named ;  all  and  every  one  is  bad. — Harris  v. 
Clark,  2  How.  Pr.,  82  ;  Mills  v.  Adsit,  ib.,  83. 

9.  In  an  affidavit  for  a  motion  to  change  the  venue,  the  town  as  well  as  the  county 
in  which  the  witnesses  reside  must  be  stated. —  Westbrook  v.  Merritt,  1  How.  Pr.,  195 ; 
Cook  V.  Finch.  2  ib.,  89  ;   Van  Auken  v.  Stewart,  ib.,  181. 

10.  The  venue  will  not  be  changed  where  there  are  witnesses  at  the  place,  as  well  as 
witnesses  abroad,  unless  there  is  great  necessity. — Austin  v.  Hinckley,  13  How.  Pr.,  576. 

11.  4th  Where  the  judge  is  disqualified  to  sit  in  a  cause  by  reason  of  consanguinity 
to  one  of  the  parties,  he  cannot  sit  even  by  consent  of  both,  and  if  he  do,  the  judgment 
will  be  vacated. — Oakley  v.  Aspinivall,  3  Corns.,  547. 


44  SUMMONS.  {>22 


TITLE    III. 

OF   THE   MANNER   OF   COMMENCING    CIVIL    ACTIONS.       («.) 

22.   [185").]   Civil  actions  in  the  district  courts,  (i)  and  the  county 

(a)  Statutes  of  1854,  194;  Wood's  Digest,  249,  Art.  1377. 

An  Act  prescribhifi  the  Tnanner  of  rommencinfj  and  maintainiiKj  suits  hi/  or  atjaiiiftt  couDties, 
paused  MuijW,  1854. 

1.  Suits  against  a  county  may  be  commenced  in  an}'  court  of  that  county,  or  in  a 
district  court  of  the  judicial  district  in  which  such  county  is  situated,  in  the  same  manner 
as  suits  against  private  persons  ;  provided,  that  suits  between  counties  shall  be  com- 
menced in  a  court  of  competent  jurisdiction,  in  any  county  not  a  party  to  such  action. 

2.  In  counties  where  there  is  a  board  of  supervisors,  having  an  acting  chairman  or 
president  of  sucii  board,  the  original  process  and  papers  shall  be  served  on  such  chair- 
man or  president,  in  the  same  manner  as  upon  private  persons  ;  when  there  is  no  sucii 
chairman  or  president,  they  shall  in  like  manner  be  served  on  the  county  judge  of  tho 
county. 

3.  Immediately  on  the  service  of  such  process  it  shall  be  the  duty  of  the  officer  so 
served,  to  deliver  such  process,  and  all  papers  accompanying  the  same,  to  the  district 
attorney  for  such  county,  whose  duty  it  shall  be  to  defend  such  cause  or  proceeding  on 
the  part  of  such  county,  until  final  judgment  or  compromise  of  such  suit  or  proceeding. 

4.  Suits  brought  for  or  against  a  county,  shall  be  by  or  in  the  name  of  such  county. 


Statutes  of  1855,  56,  ^24 ;  Wood's  Digest,  696,  Art.  .3333. 

24.  No  person  shall  sue  a  county  in  any  case,  or  for  any  demand,  unless  lie  or  she 
shall  first  present  his  or  her  claim  or  demand  to  the  board  of  supervisors  for  allowance  ; 
and  if  tliey  fail  or  refuse  to  allow  the  same,  or  some  part  thereof,  the  party  feeling  ag- 
grieved may  sue  the  county  ;  and  if  the  party  suing  recover  in  the  action  more  than 
said  board  allowed  or  offered  to  allow,  said  board  shall  allow  the  amount  of  the  said 
judgment  and  costs  as  a  just  claim  against  the  county  ;  but  if  the  party  suing  shall  not 
recover  more  than  the  board  shall  have  offered  to  allow  him  or  her,  then  costs  shall  be 
recovered  against  him  or  her  by  the  county.  All  claims  for  services  and  items  of  ac- 
count of  a  similar  nature,  presented  by  any  one  person  to  the  board  of  supervisors  at 
any  session  of  the  board,  shall  be  included  in  one  account,  and  so  considered  b}-  the 
board,  unless  by  consent  of  the  board. 

1.  The  provisions  of  these  statutes  sustained  in  Price  v.  Sarrametito  rounti/,  6  Cal., 
255;  (lilinan  v.  Contra  Costra  coiinfi/,  ib.,  670;  McCann  v.  Sierra  coiinti/,  7  Cal.,  Jan. 
T.  ;  Placer  count;/  v.  .t.s7//(,  ib.,  Oct.  T. 

2.  These  statutes  were  passed  to  obviate  the  decision  of  Iliinsacker  v.  Bordm,  5 
Cal.,  288. 

(l>)     The  superior  court  of  San  Francisco  city  abolished. — Statutes  of  l8o7,    128. 


§24  SUMMONS.  45 

courts,  shall  be  commenced  bj  the  filmg  of  a  complaint  with  the  clerk 
of  the  court  in  which  the  action  is  brought,  and  the  issuing  of  a  sum- 
mons thereon.  Provided,  that  after  the  fihng  of  the  complaint,  a  de- 
•fendant  in  the  action  may  appear,  answer  or  demur,  whether  the 
summons  has  been  issued  or  not,  and  such  appearance,  answer  or 
demurrer,  shall  be  deemed  a  waiver  of  summons. 

1.  Where  a  summons  was  issued  and  served  in  the  morning,  by  wliich  the- defend- 
ants were  cited  to  appear  and  answer  the  complaint  in  the  court  of  First  Instance,  at  10 
o'clock,  and  judgment  was  rendered  against  them  at  9  o'clock  on  the  morning  of  the 
same  day  :  held,  that  the  judgment  was  irregular,  and  should  be  reversed,  notwithstand- 
ing the  court  offered  them  permission  to  come  in  at  a  subsequent  day,  and  make  their 
defense. — Parker  x.  Shfjihard,  1  Cal.,  131. 

2.  In  the  absence  of  any  statute  to  that  effect,  the  state  cannot  be  sued,  and  a  judg- 
ment against  it,  is  erroneous. — People  \.  Talmafje,  6'Cal.,  256  ;  Meyer  v.  E>ylish,8  Cal., 
Jan.  T. 

3.  Lodging  the  summons  with  the  sheriff  with  intent  that  it  should  be  served,  is  suf- 
ficient.—  Gregory  v.  Wiener,  1  Code  K.,  N.  S.,  210. 

23.  The  clerk  shall  endorse  on  the  comjjlaint,  the  day,  month,  and      ■/  f/^// 

year  the  same  is  filed  ;  and  at  any  time  after  ihe  filing,  the  plaintiff    — ■ 

may  have  a  summons  issued.     The  summons  shall  be  signed  by  the 

clerk,  and  directed  to  the  defendant,  and  be  issued  under  the  seal  of 
the  court. 

24.  [1854.]  The  summons  shall  state  the  parties  to  the  action,  the 

court  in  Avhich  it  is  brought,  the  county  in  which  the  complaint  is  filed,   ^_^^    Sf  Y  /■ 
and  require  the  defendant  to  appear  and  answer  the  complaint  within      .^  /f/~^_i<5 
the  time  mentioned  in  the  next  section,  after  the  service  of  summons,      ,,^ 
exclusive  of  the  day  of  service,  or  that  judgment  by  default  will  be 
taken  against  him,  according  to  the   prayer  of  the  complaint,  briefly 
stating  the  sum  or  other  relief  demanded  in  the  complaint. 

1.  If  the  summons  be  radically  defective,  it  will  not  support  a  judgment  by  default. 
—The  State  v.  Woodlief,  2  Cal.,  241. 

2.  A  default  admits  every  issuable  fact  stated  in  the  complaint. — Harlan  v.  Smith, 
6  Cal.,  173. 

3.  Where  a  defendant  is  sued  as  James,  seiwice  was  returned  upon  John,  and  judg- 
ment entered  against  J.  :  held,  to  amount  to  error,  unless  the  i)crson  served  is  shown  to 
be  the  person  sued. — Sutter  v.  Cox,  6  Cal.,  415. 

4.  A  judgment  rendered  upon  irregular  process  can  be  attacked  dii:ectly,  but  not 
collaterally. —  Whitwell  v.  Barhler,  7  Cal.,  Jan.  T. ;  Doreiite  v.  Sullivan,  ib. 

5.  In  an  action  where  the  complaint  alleges  fraud,  the  summons  must  apprise  the 
defendant  that  upon  a  fiiilure  to  answer,  the  judgment  will  be  taken  against  him  for 


•-^ 


/  "oU 


46  SUMMONS.  §25 

fraiul,  or  it  will  not  warrant  a  judgment  by  default  embodying  this  charge. — Porter  v. 
Ilvrmaun,  7  Cal.,  Oct.  T. 

6.  The  court  may  permit  a  summons  to  be  amended. — McDonald  v.  Walsh,  5  Ab- 
bott, G9. 

25.  The  time  in  which  the  summons  shall  require  the  defendant  to 
answer  the  complaint,  shall  be  as  follows  : 

1st;  If  the  defendant  is  served  within  the  county  in  which  the  action 
is  brought,  ten  days. 

2d.  If  the  defendant  is  served  out  of  the  county,  but  in  the  district 
in  which  the  action  is  brought,  twenty  days. 

3d.  In  all  other  cases,  forty  days. 

1.  A  judgment  will  be  reversed  on  appeal,  rendered  before  the  time  of  answering 
has  expired. — Burt  v.  Scrantom,  1  Cal.,  416. 

26.  There  shall  also  be  inserted  in  the  summons  a  notice,  in  sub- 
stance as  follows : 

1st.  In  an  action  arising  on  contract  for  the  recovery  only  of  money 
or  damages,  that  the  plaintift'  will  take  judgment  for  a  sum  specified 
therein,  if  the  defendant  fail  to  answer  the  complaint. 

2d.  In  other  actions,  that  if  the  defendant  fail  to  answer  the  com- 
plaint the  plaintiff  will  apply  to  the  court  for  the  rehef  demanded 
therein. 

1.  A  mistake  in  the  form  of  a  summons  is  waived  by  the  unconditional  appearance 
of  the  defendant.— Z)/x  V.  Palmer,  3  Code  R.,  214  ;  5  How.  Pr.,  233. 

2.  The  causo  of  action  stated  in  the  complaint  should  control  the  form  of  the  notice 
in  the  summons. —  Voorhies  v.  Scojield,  7  How.  Pr.,  .51. 

3.  In  an  action  for  1)roach  of  promise  of  marriage,  the  summons  should  state  that 
in  default  of  answer,  the  party  would  apply  to  the  court  for  the  relief  demanded. — Da- 
vis V.  Bates,  6  Abbott,  15. 

27.  In  an  action  affecting  the  title  to  real  property,  the  plaintiff  at 
the  time  of  filing  the  complaint,  or  at  any  time  afterwards,  may  file 
with  the  recorder  of  the  county  in  which  the  property  is  situated,  a 
notice  of  the  pendency  of  the  action,  containing  the  names  of  the  parties, 
the  object  of  the  action,  and  a  description  of  the  property  in  that  county 
affected  thereby.  From  the  time  of  filing  only,  shall  the  pendency  of 
the  action  be  constructive  notice  to  a  pui'chaser  or  incumbrancer  of  the 
property  affected  thereby. 

28.  [1854,  1855.]  The  summons  shall  be  served  by  the  sheriff  of 


^9 

5  2.  . 


§29  SUMMONS.  47 

the  county  -wliere  the  defendant  is  found,  or  by  his  deputy,  or  by  a 
person  specially  appointed  by  him,  or  appointed  by  a  judge  of  the 
court  in  which  the  action  is  broutht,  or  by  any  white  male  citizen  of 
the  United  States  over  twenty-one\ears  of  age,  who  is  competent  to 
be  a  witness  on  the  trial  of  the  actima,  except  as  hereinafter  provided ; 
a  copy  of  the  complaint,  certified  by  the  clerk,  shall  be  served  with  the  S-*^  SZ-T^^Z, 
summons.  When  the  summoiys  shall  be  served  by  the  sheriff  or  his  ''/  ^_££f^ 
deputy,  it  shall  be  returned  witll  the  certificate  or  affidavit  of  the  officer, 
of  its  service,  and  of  the  service\)f  the  copy  of  the  complaint,  to  the 
office  of  the  clerk,  from  which  th^  summons  issued.  AVhen  the  sum- 
mons is  served  by  any  other  jwson  as  before  provided,  it  shall  be  re- 
turned to  the  office  of  the  clep:  from  which  it  issued,  with  the  affidavit 
of  such  person  of  its  service,\and  of  the  service  of  a  copy  of  the  com- 
plaint. If  there  be  more  thamone  defendant  in  the  action,  and  such 
defendants  reside  within  thre^  miles  of  the  clerk's  office,  a  -copy 
of  the  complaint  need  be  served  on  only  one  of  the  defendants. 

See  Sees.  646,  656. 

1.  The  (late  of  the  return  of  the  shcritf  is  sufficient,  if  defendant's  attorney  acccepts 
service  of  the  summons,  and  attached  uo  date  thereto. — Crane  v.  Bra)maii,3  Cal.,  192. 

2.  The  object  of  a  summons  is  to  bring  a  party  into  court,  and  if  that  object  be  at- 
tained, there  can  be  no  injury  to  liim. — Smith  v.  Curtis,  7  Cal.,  April  T. 

3.  It  is  doubtful  whether  a  person  served  b\'  the  wrong  name,  and  who  docs  not 
answer,  can  be  bound  by  a  judgment  taken  against  him,  by  substituting  tlie  right  name 
without  notice. — lb. 

4.  The  objection  that  a  summons  at  the  commencement  of  a  suit  is  not  properly 
served,  is  not  available  in  an  answer  or  demurrer,  but  only  on  motion  to  set  tlie  pro- 
ceedings aside. — Noi}es  v.  Hope  Mutual  Insurance  Co.,  5  How.  Pr.,  96. 

5.  A  summons  issued  without  mentioning  the  court  from  which  it  emanates,  is  de- 
fective.— Dix  V.  Palmer,  5  How.  Pr.,  23.3  ;  James  v.  Kirlqmtrich,  ib.,  241. 

6.  The  return  of  a  sheriff  or  other  person,  of  the  service  of  summons,  is  not  conclu- 
sive against  a  defendant. —  Van  Rensselaer  v.  Ckidwich,  7  How.  Pr.,  297. 

7.  Where  the  defendant  is  served  with  process  by  tlie  plaintiff  personally,  he  must 
take  advantage  of  the  irregularity  bj'  nioving  to  set  aside  the  proceedings  before  judg" 
ment,  otherwise  his  motion  will  be  too  late. — Myers  v.  Overton,  2  Abbott,  344. 

29.  [1854.]  The  summons  shall  be  served  by  delivering  a  copy 
thereof,  as  follows  : 

1st.  If  the  suit  be  against  a  corporation,  to  the  president  or  other 
head  of  the  corporation,  secretary,  cashier,  or  managing  agent  thereof. 

2d.  If  against  a  minor  under  the  age  of  fourteen  years,  to  such 
minor  personally,  and  also  to  his  father,  mother,  or  guardian  ;  or  if 
there  be  none  within  the  state,  then  to  any  person  having  the  care  or 


48  PUBLICATION   OF   SUMMONS.  §30 

control  of  such  minor,  or  with  whom  he  resides,  or  in  whose  service  he 
is  employed. 

3d.  If  against  a  person  judicially  declared  to  he  of  unsound  mind, 
or  incapahlc  of  conducting  his  own  affliirs,  and  for  whom  a  guardian 
has  been  appointed,  to  such  guardian. 

4th.  In  all  other  cases,  to  the  defendant  personally. 

1 .  Service  of  a  summons  upon  an  elector  upon  an  election  day,  is  a  void  service. — 
Mecks  V.  Noxon,  1  Abliott,  280  ;  11  How.  Pr.,  189  ;  Bierce  v.  Smith,  2  Abbott,  411  ; 
Ilasthujn  V.  Farmer,  4  Corns.,  296. 

2.  Service  of  summons  on  Sunday  would  be  a  void  service. — Field  v.  Park,  20 
John.,  140. 

3.  A  complaint  must  be  personally  served,  and  such  service  must  be  by  delivering 
it  to  the  defendant,  or  oft'erinp  it  to  him  within  his  reach,  or  laying  it  do\^ni  within  his 
reach.  —  Van  Rensselaer  v.  Petrie,  2  How.  Pr.,  94. 

4.  1st.  Service  against  a  corporation  cannot  be  made  upon  a  person  in  possession 
of  the  property,  if  not  the  president,  head,  secretary,  or  managing  agent  thereof. — Ai- 
ken V.  Mariposa  Quartz  Rock  Co.,  6  Cal.,  186. 

5.  The  managing  agent  must  be  one  whose  agency  extends  to  all  the  trans- 
actions of  the  corjjoration. — Brewster  v.  MicJii<jan  Central  R.  R.  Co.,  5  How.  Pr.,  183. 

6.  2d.  If  the  minor  resides  out  of  the  state,  a  copy  of  the  summons  must  be  depos- 
ited in  the  post  office  and  directed  to  the  minor  in  the  same  maimer  as  if  it  were  over 
the  age  of  fourteen  years. — Graij  v.  Graij,  8  Cal.,  April  T. 

7.  3d.  Service  of  a  summons  on  a  lunatic  should  be  made  personally,  and  also  on 
his  guardian  if  he  has  any. — Ileller  v.  Heller,  6  How.  Pr.,  194. 

8.  An  action  cannot  be  brought  against  a  lunatic,  judicially  declared  of  an  unsound 
mind,  without  an  application  to  the  court. — Sooerliill  v.  Dickson,  5  How.  Pr.,  109. 

9.  4th.  A  judgment  rendered  without  personal  service  is  invalid. — Parsons  v.  Davis, 
3  Cal.,  421. 

30.  When  the  person  on  whom  the  service  is  to  be  made,  resides 
out  of  the  state,  or  has  departed  from  the  state  ;  or  cannot,  after  due 
diligence,  be  found  within  the  state  ;  or  conceals  himself  to  avoid  the 
service  of  summons,  and  the  fact  shall  appear  by  affidavit  to  the  satis- 
faction of  the  court,  or  a  judge  thereof,  or  a  county  judge,  and  it  shall 
in  like  manner  appear,  that  a  cause  of  action  exists  against  the  defen- 
dant in  respect  to  whom  the  scfvice  is  to  be  made,  or  that  he  is 
a  necessary  or  proper  party  to  the  action,  such  court  or  judge  may  grant 
an  order  that  tlie  service  be  made  by  the  publication  of  the  siuumons. 

1.  The  afliihivit  of  the  jilaintitr's  attorney,  showing  that  the  defendant  conceals 
himself  to  avoid  service  of  process,  is  sufficient  to  obtain  an  order  of  publication. — An- 
derson v.  Parker,  6  Cal.,  201. 

2.  These  facts  must  be  stated  positively,  and  not  on  information  or  belief. — Krertson 
v.  Thomas,  5  How.  Pr.,  43. 


§31  ruBLicATiox  or  summons.  49 

3.  The  time  of  the  service  of  a  copy  of  the  complaint,  when  made  by  mail,  is  the 
time  when  it  is  mailed,  not  when  it  is  received. — Peebles  v.  Rogers,  5  How.  Pr.,  208  ; 
Van  Homey.  Montgomery,  ib.,  238. 

31.  The  order  shall  direct  the  publication  to  be  made  in  a  news- 
paper to  be  designated  as  most  likely  to  give  notice  to  the  person  to  be 
served,  and  for  such  length  of  time  as  may  be  deemed  reasonable,  at 
least  once  a  week :  Provided.,  that  publication  against  a  defendant  re- 
siding out  of  the  state,  or  absent  therefrom,  shall  not  be  less  than  three 
months.  In  case  of  pubhcation  where  the  residence  of  a  non-resident 
or  absent  defendant  is  known,  the  court  or  judge  shall  also  direct  a 
copy  of  the  summons  and  complaint  to  be  forthwith  deposited  in  the 
post-office,  directed  to  the  person  to  be  served,  at  his  place  of  residence. 
When  publication  is  ordered,  personal  service  of  a  copy  of  the  sum- 
mons and  complaint  out  of  the  state,  shall  be  equivalent  to  publication 
and  deposit  in  the  post-office.  In  either  case,  the  service  of  the  sum- 
mons shall  be  deemed  complete  at  the  expiration  of  the  time  prescribed 
by  the  order  for  publication.  In  actions  upon  contracts  for  the  direct 
payment  of  money,  the  court  in  its  discretion  may,  instead  of  ordering 
publication,  or  may,  after  publication,  appoint  an  attorney  to  appear 
for  the  non-resident,  absent,  or  concealed  defendant,  and  conduct  the 
proceedings  on  his  part. 

1.  The  defendant  has  forty  days'  time  to  answer,  after  the  service  of  the  summons  is 
completed  by  three  months'  publication. —  Grevellv.  Henderson,  5  Cal.,  465  ;  Djjhersy. 
Woodward,  7  How.  Pr.,  313  ;  Tondinson  v.  Van  Vechten,  6  ib.,  199. 

2.  Judgment  by  default,  upon  publication,  may  be  opened  at  any  time  within  six 
mo;iths  thereafter. —  Gui/  v.  Ide,  6  Cal.,  99. 

3.  The  court  may  appoint  an  attorney  for  an  alleged  concealed  defendant,  and  a 
judgment  against  him  will  stand  after  six  months  have  elapsed,  unless  this  defendant  file 
his  bill  to  set  aside  the  judgment  on  the  ground  of  fraud,  that  he  was  not  concealed. — 
TTa/'e  V.  Hohinson,  8  Cal.,  Jan.  T. 

4.  The  conditions  must  be  strictly  complied  with  to  confer  jurisdiction. — Hallettv. 
Righters,  13  How.  Pr.,  43. 

5.  When  the  service  is  made  out  of  the  state,  though  made  by  a  sheriff,  it  should  be 
returned  with  his  affidavit  of  service. — Thurston  v.  King,  1  Abbott,  126  ;  Morrell  v.  Kim- 
ball, 4  ib.,  352. 

6.  If  a  summons  served  by  pulilication  misstates  the  day  of  the  month  on  which  the 
complaint  is  filed,  it  is  not  an  irregularity  wliich  aftects  the  judgment ;  but  if  the  defend- 
ant is  misled  by  the  error,  he  may  be  relieved  on  the  merits. — Jacquerson  v.  Van  Erhen,  2 
Abbott,  315. 

7.  A  delay  to  deposit  in  the  post  office  a  copy  of  the  summons  and  complaint  in  fore- 
closure, pursuant  to  an  order  of  publication,  against  an  absent  defendant,  for  fifteen 


V 


50  PUBLICATION    OF    SUMMONS.  §32 

^days  after  the  granting  of  the  order,  is  an  irregularity  which  affects  the  title,  and  a  pur- 
^  chaser  will  he  relieved  from  his  purchase  thereof. — Back  v.  Crussdl,  ib.,  386. 

(  32.     Where  the  action  is  a";ainst  two  or  more  defendants,  and  the 

t  •  •    • 

^  summons  is  served  on  one  or  more,  but  not  on  all  of  them,  the  plaintiff 

may  proceed  as  follows : 
^  1st.  If  the  action  be  against  the  defendants  jointly  indebted  upon  a 
sU  contract,  he  may  proceed  against  the  defendant  served,  unless  the  court 
^  otherwise  direct ;  and  if  he  recover  judgment,  it  may  be  entered 
";  against  all  the  defendants  thus  jointly  indebted,  so  far  only  as  that  it 
N<;^  may  be  enforced  against  the  joint  property  of  all,  and  the  separate 
^    property  of  the  defendant  served  ;  or, 

2d.  If  the  action  be  against  defendants  severally  liable,  he  may  pro- 
ceed against  the  defendants  served  in  the  same  manner  as  if  they  were 
the  only  defendants. 

1 .  This  section  supersedes  tlie  common  law  remedy  of  outlawry. — Stearns  v.  Arjuirre, 
6Cal.,  183. 

2.  If  the  defendants  are  all  served,  though  at  diff"erent  times,  judgment  against  those 
first  bcrvcd  cannot  be  entered  by  the  clerk,  even  in  default  of  answer. — Stearns  v. 
Aguirre,  7  Cal.,  April  T. 

3.  If  the  defendants  are  severally  as  well  as  jointly  lialiU-,  the  jjluintitf  nuiy  proceed 
against  those  only  who  arc  served. — Stannard  v.  Mattke,  7  How.  Vi\,  4. 

83.     Proof  of  the  service  of  the  summons  shall  be  as  follows : 
1st.  If  served  by  the  sheriff  or  his  deputy,  the  affidavit  or  certifi- 
cate of  such  sheriff  or  deputy  ;  or, 

2d.  If  by  any  other  person,  his  affidavit  thereof ;  or, 
3d.  In  case  of  publication,  the  affidavit  of  the  printer,  or  his  fore- 
man, or  principal  clerk,  showing  the  same  ;  and  an  affidavit  of  a 
deposit  of  a  copy  of  the  summons  in  the  post-office,  if  the  same  shall 
have  been  deposited ;  or, 

4th.  The  written  admission  of  the  defendant. 

1 .  The  returns  of  a  summon  may  be  amended. — Dorentc  v.  Sullivan,  7  Cal.,  Jan.  T. 

2.  1st.  The  return  of  a  sheriff"  or  an  affidavit  of  a  person  acting  in  his  place,  of  the 
service  of  a  summons,  is  not  conclusive  upon  the  defendant. —  Tun  rUnsselacrv.  Chad- 
wick,  7  lluw.  I'r.,  297. 

3.  3d.  Tlie  affidavit  of  a  clerk,  not  stating  that  he  is  the  principal  clerk,  is  sufficient 
if  the  affidavit  shows  liini  to  be  the  only  clerk. —  (j'ray  v.  Giai/,  8  Cal.,  April  T. 

34.  In  case  of  service  otherwise  than  by  publication,  the  certificate 
or  affidavit  shall  state  the  time  and  place  of  the  service. 


§38  SUMMONS.  ,  51 

1.  The  evidence  of  the  place  of  service,  if  insufficient  to  authorize  the  rendition  of 
the  judjrment,  should  liave  been  taken  advantaj^c  of,  cither  upon  appeal  or  oii  motion  to 
vacate  the  judgment. — Pico  v.  Sunol,  6  Cal.,  294. 

35.  From  the  time  of  the  service  of  the  summons  and  copy  of  com- 
plaint in  a  civil  action,  the  court  shall  he  deemed  to  have  acquired 
jurisdiction,  and  to  have  control  of  all  the  subsequent  proceedings.  A 
voluntary  appearance  of  a  defendant  shall  be  equivalent  to  personal  ser- 
vice of  the  summons  upon  him. 

1.  What  constitutes  an  appearance  ?     See  sec.  523. 

2.  An  appearance  by  attorney  amounts  to  a  waiver  of  service. — Suydain  v.  Pitcher, 
4  Cal.,  280  ;  Mahaney  v.  Penman,  4  Duer,  60.3. 

3.  A  voluntary  and  general  appearance,  besides  being  equivalent  to  a  personal  ser- 
vice of  the  summons,  is  a  waiver  of  all  defects  in  summons  and  previous  proceedings. — 
Gardner  v.  Teller,  2  How.  Pr.,  241 ;  Hill  v.  Smith,  ib.,  242  ;  MulUns  v.  Clark,  3  ib., 
27  ;  Georgia  Lumber  Co.  v.  Strong,  ib.,  246  ;  Dix  v.  Palmer,  5  ib.,  233,  3  Code  E.,  214  ; 
Flynn  v.  Hudson  R.  R.  R.  Co.,  6  How.  Pr.,  308  ;  Webb  v.  Mott,  ib.,  439 ;  Hewitt  v. 
Howell,  8  ib.,  346  ;  Curjienter  v.  New  York  ^-  New  Haven  R.  R.  Co.,  11  ib.,  481  ;  Hyde 
V.  Patterson,  1  Abbott,  248. 


TITLE    IV^. 

OF    THE    PLEADINGS    IN    CIVIL    ACTIONS. 
For  Intervention,  see  Sections  659,  et.  seq. 

36.  The  pleadings  are  the  formal  allegations  bj  the  parties  of 
their  respective  claims  and  defenses,  for  the  judgment  of  the  court. 

1.  Pleadings  must  be  strongly  taken  against  the  pleader. —  Chijmian  v.Emeric,  5 
Cal.,  49. 

2.  The  mode  of  taking  advantage  of  defective  pleadings  discussed. —  White  v.  Joy, 
3  Kern.,  83. 

37.  All  the  forms  of  pleadings  in  civil  actions,  and  the  rules  by 
which  the  suflBciency  of  the  pleadings  shall  be  determined,  shall  be 
those  prescribed  in  this  act. 

1.  All  rules  of  pleading  that  are  merely  technical,  are  abolished  by  this  act. — Cubb 
V.  West,  4  Duer,  44. 

'^.^   38.  (1855.)  The  only  pleading  on  the  part  of  the  plaintiff  shall  be     ^  <^  -^^ 


52  COMPLAINT.  §39 

the  complaint,  or  demurrer  to  the  defendant's  answer,  and  the  only 
pleading  on  the  part  of  the  defendant  shall  be  the  demurrer,  or  the 
answer.  The  demurrer  or  answer  of  the  defendant  shall  be  filed  with 
the  clerk  of  the  court,  and  a  copy  thereof  served  upon  the  plaintiff  or 
his  attorney  :  Provided,  the  plaintiff  or  his  attorney  reside  within  the 
county  where  the  action  is  pending. 

39.     The  complaint  shall  contain  : 

1st.  The  title  of  the  action,  specifying  the  name  of  the  court  and 
the  name  of  the  county  in  which  the  action  is  brought,  and  the  name 
of  the  parties  to  the  action,  plaintiff  and  defendant. 

2d.  A  statement  of  the  facts  constituting  the  cause  of  action,  in 
ordinary  and  concise  language. 

3d.  A  demand  of  the  relief  which  the  plaintiff  claims.  If  the 
recovery  of  money  or  damages  be  demanded,  the  amount  thereof  shall 
be  stated. 

1.  1st.  The  statement  of  the  phicc  of  trial  (and  name  of  the  court)  in  the  complaint 
is  essential  for  many  purposes  of  the  action. — Merrill  v.  Grinnell,  10  How.  Pr.,  .31. 

2.  2d.  Where,  on  appeal,  the  complaint  is  so  radically  defective  as  not  to  authorize 
the  judgment  of  the  court  below,  a  new  trial  may  be  granted,  with  leave  to  the  plaintiff 
to  amend  his  complaint,  on  such  terms  as  the  court  l)elow  may  deem  just. — Sterling  v. 
Uanson,  1  Cal.,  378. 

3.  One  partner  cannot  sue  another  for  a  partnership  transaction,  without  praying 
for  an  account  and  a  settlementoftlie  partnership  transactions. — Russell  v.  Ford,  2  Cal., 
86;  Buekleji  v.  Carlisle,  ib.,  420;  Stone  v.  Fame,  3  Cal.,  292  ;  Nwjent  v.  Locke,  4  Cal.., 
318;  Barnstead  v.  Empire  Mining  Co.,  5  Cal.,  299. 

4.  If  the  comjilainant  do  not  show  a  good  cause  of  action,  the  judgment  will  be 
reversed  though  no  objection  be  taken  below. — Russell  v.  Ford,  2  Cal.,  86. 

5.  The  statute  requiring  the  complaint  to  contain  a  statement  of  the  facts  constitut- 
ing a  cause  of  action  in  ordinary  and  concise  language,  is  only  declaratory  of  the  com- 
mon law. —  Godwin  v.  Stebbins,  2  Cal.,  103. 

6.  Although  the  prayer  of  a  bill  be  inartificially  framed,  the  court  will,  under  the 
general  prayer  for  relief,  disregard  mistakes,  and  grant  such  relief  as  will  conform  to  the 
bill. —  Trill  liodij  v.  Jdcobson,  2  Cal.,  269. 

7.  Where  a  bill  disclosed  that  the  same  subject  matter  had  been  litigated  between 
the  same  parties  in  a  prior  suit,  and  that  in  said  suit,  the  plaintiff  in  this  suit,  had  set 
np  the  same  equity  which  he  claims  in  tliis  bill,  the  bill  was  ordered  to  bo  dismissed. 

8.  The  allegations  of  ignorance  in  making  the  necessary  averments,  or  of  insuflS- 
cient  conduct,  in  the  prosecution  of  a  former  suit,  does  not  constitute  aground  for  relief 
in  chancery. — Burnett  v.  Kilbiirn,  3  Cal.,  327. 

9.  Where  the  complaint  alleged  tiiat  in  September,  1849,  plaintiff  settled  on  a  tract 
of  IfnA,  "  The  same  being  public  land  of  tiie  United  States."  That  subscciuently  II., 
a  foreigner,  built  a  house  and  occupied  a  portion  of  the  tract,  and  now  that  II. 's  exe- 
cutor is  offering  the  same  for  sale,  and  the  plaintiff  prays  an  injunction,  and  damages 


§39  COMPLAIXT.  53 

for  the  occupation.     Hckl,  that  the  complaint  sets  forth  no  principle  on  whicli  to  base  a 
claim. — 0' Conner  v.  Corbitt,  3  Cal.,  370  ;  Ramirez  v.  Mmraij,  5  Cal.,222. 

10.  AVherc  the  declaration  was  upon  a  note,  and  there  was  but  one  count,  and  the 
court  found  tliat  the  note  was  never  given,  but  that  the  indebtedness  of  defendant  to 
plaintit^'  was  for  n)erchandise  sold.  Held,  tliat  the  finding  was  against  the  averment, 
and  could  not  sujjport  the  judgment. — Lewis  v.  Mijers,  3  Cal.,  475. 

11.  A  declaration  is  insutticicnt,  which  treats  the  maker  and  guarantor  of  a  note  as 
joint  makers,  and  contains  no  allegation  of  demand  and  notice. — Ligidstone  v.  Lauren- 
eel,  4  Cal.,  277. 

12.  In  an  action  upon  a  promise  to  pay  money,  the  complaint  should  aver  consider- 
ation or  indel)tcdness. — Shafer  v.  Bear  River  Co.,  4  Cal.,  294. 

13.  An  amended  complaint  cannot  be  allowed  to  change  the  nature  of  an  action. — 
Ramirez  V.  Murray,  5  Cal.,  222. 

14.  It  is  only  necessary  that  the  cause  of  indebtedness  should  be  stated  in  such  a 
manner  as  to  apprise  the  defendant  of  the  object  of  the  suit. — Mtdliken  v.  Hull,  5 
Cal.,  245. 

15.  A  complaint  in  ejectment  need  not  aver  title  in  the  plaintiff,  but  an  averment 
of  prior  possession  and   an  ouster  is  sufficient. — Norris  v.  Rtissell,  5  Cal.,  249. 

16.  In  an  action  of  trespass  against  a  sheriff,  where  he  is  declared  against  person- 
ally, and  not  as  sheriff,  it  is  competent  to  prove  that  the  defendant  was  sheriff,  and 
that  his  deputy  as  such  committed  the  trespass. — Poinsett  v.  Taylor,  6.  Cal.,  78. 

17.  Objections  to  the  form  of  a  complaint  cannot  be  raised  for  the  first  time  in  the 
supreme  court. — Sutter  v.  Cox,  6  Cal.,  415. 

18.  In  a  complaint  upon  a  bond  by  defendant  in  an  action,  either  for  the  delivery 
of  property  replevied,  or  the  release  of  property  attached,  the  conditions  precedent  of 
the  bond  must  be  set  forth  in  the  complaint. — Palmer  v.  Melvin,  6  Cal.,  651  ;  Nicker- 
son  V.  Chatterton,  7  Cal.,  April  T. 

19.  In  a  Inll  in  equity,  filed  to  reach  assets  which  are  alleged  to  be  fraudulently  con- 
veyed, it  is  not  sufficient  simply  to  aver  that  the  conveyance  was  fraudulent,  but  facts 
and  circumstances  must  be  set  out  and  shown,  to  sustain  the  theory  of  the  bill. — Kin- 
der V.  Macy,  7  Cal.,  Jan.  T: 

20.  A  great  necessity  exists  for  a  correct  description  of  commercial  paper  in  a  com- 
plaint, so  as  to  operate  as  a  bar  to  any  subsequent  action  to  recover  for  the  same  cause. 
— Farmer  v.  Cram,  7  Cal.,  Jan.  T. 

21.  The  allegation  that  plaintiffs  were  the  owners  and  in  the  possession  of  a  mining 
claim,  is  sufficient  without  setting  out  the  particulars  of  the  title. — Leigh  Co.  v.  Inde- 
pendent Ditch  Co.,  7  Cal.,  Oct.  T. 

22.  A  complaint  against  an  incorporated  body  which  cannot  act  but  liy  ordinance 
duly  passed,  must  aver  that  the  cause  of  action  arose  upon  a  contract  created  by  ordi- 
nance, to  show  that  the  corporation  is  thereby  bound. — Hunt  v.  City  of  San  Francisco, 
8  Cal.,  Jan.  T. 

23.  A  complaint  on  treasury  warrants  is  bad  for  uncertainty,  which  does  not  give  the 
number,  dates,  or  amounts  of  the  several  warrants,  or  the  names  of  the  payees,  or  any 
of  them. — Hi. 

24.  A  complaint  should  state  the  facts  of  a  case  full  enough  to  enable  the  court  on 
proof  or  admission  of  the  facts  set  forth,  to  grant  the  relief  sought. — Tallman  v.  Green, 
3  Sand.,  438. 


54  COMPLAINT.  §40 

25.  The  plaintiff  must  aver  every  fact  necessary  to  show  a  ripjlit  to  recover,  and  eve- 
ry such  necessary  averment  must  be  proved  in  some  way. — Murdock  v.  Chennnr/o  Co. 
Mitt.  Ins.  Co.,  2  Corns.,  210. 

26.  The  plaintiff  is  to  state  in  his  complaint  the  facts  which  constitute  the  cause  of 
action,  and  nothing  more. — Clark  v.  Ilurwood,  8  How.  Pr.,  470. 

27.  In  the  complaint  against  the  drawer  of  a  hank  check,  or  of  a  hill  of  exchange 
properly  so  called,  it  is  necessary  to  aver  either  demand  or  notice  to  the  drawer  of  non- 
jiaymcnt,  or  such  facts,  e.  g.,  want  of  funds  in  the  bank,  to  excuse  the  demand  and 
notice. — Shultz  v.  Dupity,  3  Abbott,  252. 

28.  A  complaint  upon  a  promissory  note  against  maker  and  endorser,  is  not  good 
if  it  fiiils  to  aver  that  the  maker  made  and  the  endorser  endorsed  the  note. — Price  \. 
McClare,  3  Abbott,  253. 

29.  A  complaint  seeking  to  charge  the  separate  estate  of  a  married  woman  with  her 
debts  is  bad  upon  demurrer,  if  it  docs  not  set  forth  the  property  which  it  is  sought  to 
reach,  and  the  nature  of  her  interest  in  it. — Sexton  v.  Fleet,  6  Abbott,  8. 

30.  It  is  not  allowed  to  the  plaintiff  to  set  forth  in  different  counts,  several  distinct 
causes  of  action  for  the  same  indebtedness. — Lackey  v.  Vanderhilt,  10  How.  Pr.,  155  ; 
Ford  V.  ^fatlice,  14  ib.,  91. 

31 .  Several  causes  of  action  upon  promissory  notes  may  be  united  in  the  same  com- 
plaint. They  are  not  improperly  united  simply  because  they  arc  not  separately  stated. 
— Dorman  x.Kellam,  14  How.  Pr.,  184. 

40.  The  defendant  may  demur  to  the  complaint  within  the  time 
required  in  the  summons  to  answer,  when  it  appears  upon  the  face  there- 
of, either : 

1st.     That  the  court  has  no  jurisdiction  of  the  person  of  the  defend- 
'S)    /■  ant,  or  the  subject  of  the  action;  or, 

2d,     That  the  plaintiff  has  not  legal  capacity  to  sue  ;  or, 
3d.     That  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause  ;  or, 

4th.     That  there  is  a  defect  of  parties,  plaintiflf  or  defendant ;  or, 
5th.     That  several  causes  of  action  have  been  improperly  united  ;  or, 
Gth.     That  the  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  ^         _  ,    .  '  ■      ^      ,r\  l.' 

1 .  When  a  demurrer  is  put  in  and  overruled,  and  defendant  answers,  the  answer  is 
a  waiver  of  demurrer. — DcBoomv.  Priestly,  1  Cal.,  206  ;  Pierce  v.  Minturn,  ib.,  470  ; 
Brooks  V.  Minturn,  ib.,  481  ;  Harper  \.  Leal,  10  How.  Pr.,  276. 

2.  When  the  declaration  states  a  condition  precedent,  and  fails  to  aver  the  perform- 
ance, the  defect  must  be  taken  advantage  of  by  demurrer. — Ilappe  v.  Stout,  2  Cal.,  460. 

3.  Objections  to  a  declaration  when  they  arise  from  matters  of  form  arc  not  subjects 
of  a  demurrer. — Otero  v.  Bullard,  3  Cal.,  188 ;  Ilowell  v.  Frazer,  1  Code  R.,  N.  S.,  270. 

4.  An  omission  to  allege  delivery  in  a  suit  on  bond,  can  be  taken  advantage  of  only 
by  demurrer. —  Garcia  r.  Satritste(/ui,  4  Cal.,  244. 


/3  f 


§40  DEMURRER.  55 

5.  If  a  demurrer  be  to  tlie  whole  complaint,  and  any  ]iart  of  tlic  complaint  is  good, 
the  demurrer  must  be  overruled. —  Whitinr/  v.  Heslep,  4  Ci\\.,  327  ;  Cooper  y.  Clason,  \ 
Code  R.,  N.  S.,  347  ;  Buthr  v.  Wood,  10  How.  Pr.,  222  ;  Frcdand  v.  McCiillomjh,  1 
Denio,  414. 

6.  A  judgment  on  demurrer  is  not  a  bar  to  a  sul)scqnent  action,  but  only  where  it 
determines  the  whole  merit  of  the  case. — liobiiison  v.  Howard,  .5  Cal.,  428. 

7.  A  count  in  a  complaint  for  money  had  and  received,  which  docs  not  allege  a 
demand,  is  demurrable. — lieuia  v.  Cross,  6  Cal.,  29. 

8.  Where  a  bill  alleges  a  parol  trust,  it  seems  that  it  must  be  denied  ;  a  general  de- 
murrer will  not  lie. — Peralta  v.  Castro,  6  Cal.,  354. 

9.  A  demurrer  may  be  good  as  to  one  defendant  and  bad  as  to  another. — 1  Barb. 
Ch.  Pr.,  108. 

10.  Irrelevancy  is  no  ground  for  demurrer. —  Watson  v.  Ilusson,  1  Duer,  242  ;  Smith 
V.  Greenin,  2  Sand.,  702. 

11.  Uncertainty  is  no  ground  for  demurrer. — Richards  v.  Edich,  17  Barb.,  260. 

12.  Duplicity  is  no  ground  for  demurrer — Welles  v.  Webster,  9  How.  Pr.,  251  ; 
Gooding  v.  M'Alister,  ib.,  123  ;  Bobinsonv.  Judd,  ib.  378. 

13.  A  demurrer  will  not  be  stricken  out  as  frivolous,  unless  it  is  apparent  without 
argument. — Sirpennij  Savings  Bank  v.  Sloan,  2  Abbott,  414  ;  12  How.  Pr.,  543. 

14.  Judgment  cannot  be  given  for  a  demurrant  on  a  ground  different  from  that 
which  is  stated  in  the  demurrer. —  Wilson  v.  Mayor  of  New  York,  6  Abbott,  6. 

15.  A  demurrer,  does  not  lie  to  an  alternative  writ  of  mandate. — People  v.  Harris, 
6  Abbott,  30. 

16.  A  defendant  may  demur  when  the  claim  is  barred  by  the  statute  of  limitations 
on  its  face.— Sublette  v.  Tinneij,  8  Cal.,  April  T. ;  Fellers  v.  Lee,  2  Barb.,  488  ;  Himi- 
bert  v.  Trinitj  Church,  7  Paige,  194  ;    Van  Hook  v.  Whitlock,  ib.  373. 

17.  Where  two  defendants  appear  and  demur  separately  to  the  complaint,  and  both 
demurrers  arc  allowed  with  leave  to  amend  on  payment  of  costs,  each  defendant  is 
entitled  to  costs. —  Collomb  v.  Caldwell,  5  How.  Pr.,  336. 

18.  A  demurrer  is  proper  when  matter  in  abatement  constituting  a  defense  is  appa- 
rent on  the  face  of  the  complaint. — Mayhew  v.  Robinson,  10  How.  Pr.,  162. 

19.  An  answer  containing  a  counter  claim  is  not  demurrable,  because  it  is  not  an 
answer  to  the  whole  of  the  plaintiff's  cause  of  action. — Allen  v.  Haskins,  5  Duer,  332. 

20.  A  demurrer  is  only  appropriate  when  the  ground  of  the  demurrer  is  apparent 
on  the  face  of  the  pleading. —  Getty  v.  Hudson  R.  R.  R.  Co.,  8  How.  Pr.,  177. 

21.  1st.-  A  state  court  has  not  jurisdiction  of  a  suit  in  which  the  existence  and  valid- 
ity of  a  patent  for  an  invention  must  necessarily  be  shown,  to  enable  the  plaintiff  to  make 
out  his  case.-^  Jbm/j'nson  v.  Battel,  4  Abbott,  266. 

22.  The  statute  of  April,  1854,  gives  to  counties  the  right  to  prosecute  and  defend 
actions  the  same  as  individuals,  and  they  have  a  legal  capacity  to  sue. — Price  v.  Sacra- 
mento county,  6  Cal.,  254  ;  Gilman  v.  Contra  Costa  county,  ib.,  676;  Placer  county  v. 
Astin,  7  Cal.,  Oct.  T.     See  note  [a]  p.  44. 

23.  Where  a  party  is  suing  in  two  courts  for  the  same  cause  of  action,  he  may  be 
compelled  to  elect  in  which  court  he  will  proceed. — Hammond  v.  Baker,  1  Code  R.,  N. 
S.,  105. 

24.  The  parties  may  be  plaintiff  and  defendant  in  one  suit,  and  defendant  and  plain- 
tiff in  the  other.     Groshons  v.  Lyon,  16  Barb.,  461 ;  1  Code  R.,  N.  S.  348. 


56  DEJIURRE'.{.  §40 

25.  AVherc  it  docs  not  appear  from  the  face  of  tlie  complaint  that  another  action  is 
pending  from  the  same  cause,  the  objection  should  be  stated  as  a  defense  in  the  answer, 
otherwise  by  demurrer. — Ilomfaijer  v.  Uornfmjer,  6  How.  Pr.,  279. 

26.  4tli.  After  demurrer  and  the  pleadings  are  amended  by  striking  out  a  party 
demurred  to,  tiic  defendant  cannot  object  to  the  non-joinder  of  that  jjarty. — Powell  v. 
liosg,  4  Cal.,  197. 

27.  If  the  wife  is  improperly  joined  it  should  have  been  taken  advantage  of  by  de- 
murrer.— Tissot  V.  Thockmorlon,  6  Cat.,  471. 

28.  A  demurrer  sustained  on  the  defect  of  parties. — Lucas  v.  Payne,  7  Cal.,  Jan.  T. ; 
Ilamlin  v.  Osborn,  ib. 

29.  A  defendant  cannot  demur  because  others  arc  improperly  made  defendants. — 
Pincknei/  v.  Wallace,  1  Abbott,  82  ;  Voorliies  v.  Baxter,  ib.,  43  ;  Churchill  v.  Trapp,  3  ib., 
306  ;  Pliillips\.  Ilaijadon,  12  How.  Pr.,  17;   Grer/ori/  v.  Oaksmith,  ib.,  134. 

30.  Tiie  objection  to  the  misjoinder  of  parties  and  of  the  cause  of  action,  should 
have  been  taken  by  demurrer  or  answer. — Jacks  v.  Cooke,  6  Cal.,  164. 

31.  Where  a  suit  is  brought  upon  a  bill  of  lading  made  to  the  plaintiff  jointly  with 
anotiier,  the  plaintitf  has  no  separate  cause  of  action. — Mayo  v.  Stansbury,  3  Cal.,  465. 

32.  A  demurrer  for  non-rejoinder  of  parties  is  well  taken  where  it  appears  that  the 
court  cannot  d<;terminc  the  controversy  before  it  without  prejudice  to  the  rights  of  par- 
ties, nor  by  saving  their  rights. —  Wallace  v.  Eaton,  5  How.  Pr.,  99. 

33.  A  demurrer  will  lie  for  the  non-joinder  of  the  proper  parties  defendant,  but 
not  for  the  misjoinder  of  same. — Drownson  v.  Clifford,  8  How.  Pr.,  384. 

34.  A  motion  to  strike  out  a  co-fendant  where  the  defendants  arc  improperly 
joined  in  the  action,  is  the  proper  remedy  wlicrc  the  misjoinder  is  not  apparent  upon 
the  face  of  the  complaint.  If  apparent,  a  demurrer  would  be  the  remedy. — Bailey  \. 
Easterly,  7  ib.,  495. 

35.  5th.  A  demurrer  whidi  alleges  "  that  several  causes  of  action  are  improperly 
joined  in  the  complaint,"  is  a  general  demurrer  and  unautliorized. — Hinds  v.  Tweddle, 

ib.,  278. 

36.  A  cause  of  action  arising  on  contract,  cannot  be  united  with  one  arising  in  tort. 
—  Walki-  V.  Raskan,  12  ib.,  28. 

37.  Seeking  to  charge  the  defendant  individually,  and  as  executor,  is  not  allowa- 
ble.— McMahon  v.  Harrison,  ib.,  39. 

38.  When  the  complaint  in  fact  contains  but  a  single  cause  of  action,  altiiough 
stated  in  different  counts,  whatever  else  it  may  contain,  the  defendant  cannot  success- 
fully demur  on  the  ground  that  several  causes  of  action  are  improperly  united. — llill- 
inan  v.  Ilillman,  14  How.  Pr.  R.,  456. 

39.  A  demurrer  does  not  lie  to  a  complaint  for  the  defect  of  not  sei)aratcly  stating 
two  or  more  causes  of  action,  they  being  such  as  might  be  united  in  one  coni|)laint,  if 
properly  drawn. — Badycr  y.  Benedict, -i  Abbott,  176;  Dorinun  v.  Kellain,  ib.,  202; 
14  How.  Pr.  184. 

40.  6tb.  A  demurrer  to  an  answer  held  well  taken,  when  the  answer  should  aver 
that  the  alteration  of  a  promissory  note  was  made  witii  the  knowledge  or  consent,  or 
bv  the  authority  of  the  plaintiff,  and  second,  because  the  alteration  was  not  nuitcrial. 
— llumplireys  v.  Crane,  5  Cal.,  173. 

41.  Where  a  complaint,  though  defective,  states  facts  sufficient  to  constitute  a  cause 


§44  DEMURRER.  57 

of  action,  the  objections  to  it  should  he  taken  hy  demurrer. — Greenjield  v.  Steamer 
"Gtmtiell,"  G  Cal.,  67. 

42.  It  seems  now  to  be  settled,  that  a  demurrer  authori/.cil  by  this  subdivision  need 
only  state  tiie  language  thereof.— EUissen  v  Ilulhrk,  6  Cal,  386  ;  Tlnire  v.  Buk(r,  I  Sel- 
den,  357;  Johnson  v.  Wetmorr,  12  Barb.,  433;  Noxon  v.  Bcnt/ei/,  7  IIow.  Pr.,  316  ; 
Ifi/de  V.  Conrad,  3  Code  R.,  162  ;  5  IIow.  Pr.,  112;  Hooglund  v.  Hudson,  8  How.  Pr., 
343  ;   Grcdiam  v.  Camman,  13  ib.,  360  ;  5  Duer,  697. 

43.  But  should  a  defendant  state  what  facts  are  needed,  then  he  cannot  insist  on 
others  at  the  argument  of  the  demurrer. — Nellis  v.  DeForest,  16  Barb.,  65. 

44.  A  demurrer  in  this  form  puts  in  issue  the  validity  of  the  whole  complaint,  so 
that  if  the  complaint  is  deticient  by  the  non-statement  of  any  fact,  necessary  for  the 
plaintirt' to  prove  to  make  out  his  action,  the  demurrer  must  be  sustained. —  Whitex. 
Brmrn,  14  How.  Pr.,  282. 

45.  A  demurrer  in  this  form  applies  onlj'  to  such  defects  as  would  render  the  count 
bad  on  general  demurrer  at  law,  or  bad  for  want  of  equity  in  chancery. —  Graham  y. 
Camman,  5  Duer,  697  ;  13  How.  Pr.,  360. 

41.  The  demurrer  shall  distinctly  specify  the  grounds  upon  which 
anj  of  the  objections  to  the  complaint  are  taken.  Unless  it  do  so,  it 
maj  be  disregarded. 

42.  The  defendant  may  demur  to  the  whole  complaint,  or  to  one 
or  more  of  several  causes  of  action  stated  therein,  and  answer  the  resi- 
due ;  or  may  demur  and  answer  at  the  same  time. 

1.  After  an  extension  of  time  to  answer,  the  defendant  may  put  in  a  demurrer 
instead  of  answering. — Brodhead  v.  Brodhead,  3  Code  R.,  8. 

2.  The  defendant  cannot  demur  to  part  and  answer  another  part  of  a  complaint 
which  contains  but  one  cause  of  action  stated  in  one  count.  In  otlier  words,  a  defend- 
ant camiot  demur  to  part  of  a  cause  of  action. — Ingraham  v.  Baldwin,  12  Barb.,  9, 

43.  [1854,  1855.]  If  the  complaint  be  amended,  a  copy  of  the  ^  y 


amendments  shall  be  filed,  or  the  court  may,  in  its  discretion,  require 
the  complaint  as  amended,  to  be  filed,  and  a  copy  of  the  amendments 
shall  be  served  upon  every  defendant  to  be  affected  thereby,  or  upon 
his  attorney,  if  he  has  appeared  by  attorney ;  the  defendant  shall 
answer  in  such  time  as  may  be  ordered  by  the  court,  and  judgment 
by  default  may  be  entered  upon  failure  to  answer,  as  in  other  cases. 

1.  Tiie  plaintiff  has  no  right  to  amend  his  complaint  by  striking  out  the  name  of 
one  or  more  parties,  without  leave  of  the  court. — liassdl  v.  Spear,  5  How.  Pr.,  142. 

44.  AVhen  any  of  the  matters  enumerated  in  section  forty  do  not 
appear  upon  the  face  of  the  complaint,  the  objection  may  be  taken  by 
answer. 

E 


/2  Ji.^ti-  /r. 


58  AxswER.  §45 

1 .  The  objectiun  to  tlie  misjoinder  of  parties,  and  of  the  cause  of  action  should 
have  been  taken  by  demun-er  or  answer. — Jacks  v.  Cooke,  6  Cal.,  164  ;  Alvarez  y. 
Brannan,  7  ib.,  Apr.  T. ;  Andrews  v.  Mokelumne  Ilill  Co.,  ib.,  Apr.  T. ;  Whitney  v. 
Stark,  ib.,  Oct.  T. ;  Lemi's  v.  Graham,  4  Abbott,  106  ;  Leavitt  v.  Fisher,  4  Duer,  2. 

45.  If  no  such  objection  be  taken,  either  hy  demuiTer  or  anSAver, 
the  defendant  shall  be  deemed  to  have  waived  the  same,  excepting 
only  the  objection  to  the  jurisdiction  of  the  court,  and  the  objection 
that  the  com])laint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action. 

1.  The  failing  to  demur  does  not  waive  the  right  of  defendant  to  object  on  the  trial 
for  the  first  time  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action. — Iligi/ins  v.  Freeman,  2  Duer,  650  ;  Monii/omeri/  County  Bank  v.  Albany  City 
Bank,  3  Seld.,  4.59. 

2.  An  incurable  defect  is  not  waived  by  any  pleading,  but  may  be  taken  advantage 
of  whenever  the  parties  are  before  the  court,  either  by  motion,  or  on  the  trial,  by  mo- 
tion in  arrest  alter  verdict. — Burnhamx.  DeBevorse,  8  How.  Pr.,  159;  St.  John  v.  Nor- 
thrup,  23  Barb.,  30. 

^  /)  /j       40.     [1854.]    The  answer  of  the  defendant  shall  contain : 

1st.  If  the  complaint  be  verified,  a  specific  denial  to  each  allega- 
tion of  the  complaint  controverted  by  the  defendant,  or  a  denial 
thereof,  according  to  his  information  and  belief ;  if  the  complaint  be 
not  verified,  then  a  general  denial  to  each  of  such  allegations,  but  a 
general  denial  shall  only  put  in  issue  the  material  and  express  allega- 
tions of  the  complaint ; 

2nd.  A  statement  of  any  new  matter  constituting  a  defense,  in 
ordmary  and  concise  language.       C-       '''^^^l^^-^^x-A-.^^^  ,'^^IC^o  ] 

1.  To  set  up  tender  in  answer  as  a  defense  to  costs,  see  sec.  506. 

2.  Where  defendant's  answer  is  a  general  denial,  it  has  the  same  influence  as  a  plea 
at  common  law  of  the  general  issue,  and  accord  and  satisfaction  may  be  given  in  evi- 
dence.—  Gavin  V.  Annan,  2  Cal.,  494  ;  McLarrcn  v.  Sjxilding,  2  Cal.,  510. 

3.  The  effect  of  this  general  denial  is,  that  any  matter  can  be  given  in  evidence 
which  shows  that  plaintiff  never  had  any  cause  of  action,  and  most  matters  in  dis- 
charge of  the  action. — McLarrcn  v.  Spalilin;/,  2  Cal.,  510. 

4.  A  specific  denial  of  one  or  more  allegations,  is  an  admission  of  all  others  well 
pleaded. — ImRo  v.  Cordis,  4  Cal.,  117. 

5.  The  answer  to  a  complaint  on  a  promissoi7  note,  should  set  out  the  circumstan- 
ces under  which  the  note  was  given,  and  point  out  the  facts  which  constitute  the  fraud. 
Gushee  v.  Leavitt,  5  Cal.,  IGO. 

6.  An  answer  should  aver,  first,  that  the  alteration  of  the  instrument  was  made 
with  the  knowledge  or  consent  of,  or  by  the  plaintiff  's  authority,  and  second,  that  the 
alteration  was  not  nuiterial. — Jlnmjihrcys  v.  Crane,  5  Cal.,  173. 


§46  ANSWER.  59 

7.  "\^nicrc  a  bill  alleges  a  parol  trust,  it  seems  that  it  must  be  denied,  and  a  gener- 
al deniiirrer  will  not  lie. — Peralta  v.  Castro,  6  Cal.,  354. 

8.  The  answer  must  eontain  a  specific  denial  to  each  allegation,  if  the  complaint 
is  sworn  to,  or  every  material  allegation  not  specially  controverted  by  the  answer  will 
be  taken  as  true. — Dewey  y.  Bowmnv,  7  Cal.,  July  T. ;  Huviphreys  v.  McCall,  8  Cal., 
Jan.  T.  ;   Curtis  v.  Richards,  ib. 

9.  An  answer  which  denies  a  material  allegation  in  tlie  complaint,  cannot  be 
stricken  out  as  frivolous. — Davis  v.  Potter,  4lIow.  Pr.,  155. 

10.  An  answer  is  bad  when  it  controverts  no  allegation  of  tlic  conii)laiiit,  and  sets 
up  no  new  matter  in  bar,  but  merely  denies  a  conclusion  of  law. — McMurraj/  v.  G'if- 
onl,  5  ib.,  14. 

11.  An  answer  must  eitlier  deny  allegations  in  the  complaint,  or  set  up  new  matter 
by  way  of  defense. — Gould  v.  Williams,  9  ib.,  51. 

12.  A  supplemental  answer  may  be  allowed,  on  motion,  whenever  the  facts  form- 
ing the  ground  of  this  answer  occurred  since  the  answer  was  put  in. — Drou(jlit  v.  Cur- 
tis, 8  ib.,  56. 

13.  AVherc  plaintiff  sues  in  a  representative  capacity,  an  answer  denying  knowl- 
edge or  information  sufficient  to  form  a  belief  whether  defendant  is  indebted  to  plain- 
tiff is  not  frivolous. — Morrow  v.  Cougan,  3  Abbott,  328. 

14.  An  answer  served  in  time  and  verified  if  necessary,  cannot  be  treated  as  a 
nullity  simply  because  the  defense  which  it  sets  up  is  defective. — Bergman  v.  Howell,  3 
Abbott,  329. 

15.  Where  there  are  several  answers,  an  admission  made  in  one  is  not  available 
Against  the  others.  Each  answer  must  stand  by  itself,  as  a  complete  defense,  and  the 
plaintiff  must  recover  upon  the  whole  record. — Swift  v.  Kingsley,  24  Barb.,  541. 

16.  1st,  "When  a  complaint  alleges  that  the  plaintiff  was  in  quiet  and  peaceable  pos- 
session of  premises,  and  was  dispossessed  by  defendants,  by  foi'ce,  or  under  an  illegal 
order  made  by  an  officer  having  no  jurisdiction,  the  answer  should  take  issue  directly 
upon  tlie  allegations  of  the  complaint,  or,  confessing  them,  should  state  distinctly  and 
positively,  new  matter  sufficient  to  avoid  them. — Ladd  v.  Stevenson,  1  Cal.,  18. 

17.  When  a  chancery  suit  is  heard  on  bill  and  answer,  all  the  allegations  in  the 
answer,  whether  upon  knowledge  or  information  and  belief,  are  to  be  taken  as  true.  If 
the  complainant  wishes  to  dispute  any  of  the  allegations  in  the  answer,  he  must  file  a 
replication,  and  thus  enable  the  defendant  to  establish  them  by  proof,  if  he  can. —  Von 
Schmidt  V.  Huntington,  1  Cal.,  55. 

18.  It  is  no  defense  to  a  suit  on  a  negotiable  bill  of  exchange,  that  the  suit  is 
brought  in  the  name  of  a  mere  agent  or  stranger,  or  a  fictitious  person. — Lineker  v. 
Ayeshford,  1  Cal.,  76. 

19.  The  complaint  alleged  the  making  of  a  note  and  the  endorsement  thereof,  and 
the  answer  was  a  general  denial  in  the  terms  of  the  old  general  issue  in  assumpsit, 
that  the  defendant  undertook  and  promised,  in  manner,  form,  i&c. ;  Held,  that  the 
plaintiffs  would  have  been  entitled  to  judgment,  on  a  motion  in  the  court  below  to 
strike  out  the  answer  as  a  nullity ;  but,  held,  further,  that  he  should  have  raised  his 
objection  to  the  answer  in  the  court  below,  and  had  it  passed  upon,  and  that  having 
rested  his  cause  at  the  trial  on  the  ground  of  want  of  an  affidavit,  he  will  not  be  per- 
mitted to  say  on  appeal,  for  the  first  time,  that  the  answer  does  not,  in  a  proper  form 
controvert  the  allegations  of  the  complaint. —  Grogan  v.  Ruckle,  1  Cal.,  194. 


60  .  ANSWER.  §46 

20.  Matters  in  avoidance  must  be  specially  pleaded. —  Gaslcill  v.  Trainer,  3  Cal.,  334. 

21.  The  admission,  by  an  attorney  of  record,  of  the  correctness  of  the  amount  due  for 
which  judgment  is  taken,  when  not  done  in  fraud  of  the  rij;lits  of  his  client,  must  de- 
stroy the  effect  of  the  denial  in  answer, — Tai/hr  v.  Baiuhill,  5  Cal.,  79. 

22.  Where  the  answer  in  a  suit  against  a  corporation  on  its  note,  relies  merely  on 
the  want  of  power  of  the  corporation  to  issue  notes,  the  defendant  cannot  afterwards 

•  object  that  the  i)Iaintiff  has  not  shown  that  the  officers  executing  the  note  were  em- 

powered by  the  corf)oration  to  do  so. — Smith  v.  Eureka  Mills  Co.,  6  Cal.,  1. 

23.  The  answer  and  demurrer  are  different  pleadings,  and  by  the  fact  that  they  are 
on  one  paper,  and  in  form  connected,  they  do  not  lose  their  distinct  character. — IIoic- 
ard  V.  Miclu(jan  Southern  R.  li.  Co.,  5  How.  Pr.,  206. 

24.  Wliere  the  cause  of  action  is  divisible,  or  several  causes  stated,  the  defendant 
may  deny  part  and  leave  residue  unanswered. — Smith  v.  Shufelt,  3  Code  R.,  175; 
Snyder  v.  While,  6  How.  Pr.,  321  ;  Tracy  v.  Humphrey,  3  Code  R.,  190. 

2.').  The  effect  of  a  denial  of  the  allegations  of  a  complaint  is  to  cast  the  burthen  of 
proof  ui)on  the  plaintiff;  but  when  the  proof  is  given,  no  evidence  of  a  defense,  not  set 
up  in  the  answer,  can  be  received. — Terier  v.  Gouin,  5  Duer,  389. 

26.  2d,  A  defendant  should  set  forth  the  time  nature  of  his  defense  in  his  answer,  and 
in  case  he  does  not,  should  not  be  permitted  to  insist  upon  it. —  ]\'alton  v.  Minturn,  ) 
Cal.,  362. 

27.  The  special  defense  of  "unworkmanlike  manner  "  must  be  set  up  in  the  an- 
swer. The  contract,  and  not  whether  the  article  is  fit  for  use,  must  rule. — Kendall  Vy 
Vedlejo,  1  Cal.,  371. 

28.  A  vendee  may  avail  himself  of  fraud,  breach  of  warranty,  or  failure  of  consid- 
eration, by  way  of  defense,  in  action  upon  contract. — Flint  v.  Lyon,  4  Cal.,  17. 

29.  Wliere  matter  of  defense  occurs  after  the  commencement  of  the  action  and  be- 
fore answer,  it  may  be  set  up  by  answer. — Seals  v.  Cameron,  3  How.  Pr.,  414. 

30.  The  new  matter  must  be  facts,  and  if  fraud  is  alleged,  the  facts  and  circumstan- 
ces of  the  fraud  must  be  set  forth. — McMnrray  v.  (Hfford,  5  How.  Pr.,  14. 

31.  If  the  new  matter  occurs  after  answer,  the  defense  must  be  made  by  a  supple- 
mental answer. — Ilornfar/er  v.  Ilornfafjer,  1  Code  R.,  N.  S.,  180. 

32.  Matter  in  abatement  constituting  a  defense,  should  be  pleaded  or  set  up  in  the 
answer  unless  it  is  apparent  on  the  face  of  the  complaint. — Mayhem  v.  Robinson,  10 
How.  Pr.,  163;  contra,  Van  Buskirk  v.  Roberts,  14  ib.,  61. 

33.  An  answer  of  new  matter  which  does  not  state  facts  sufficient  to  constitute  a 
defense,  is  always  insufficient,  and  may  be  demurred  to. —  Welch  v.  Ilazellon,  14  How. 
Pr.,  97. 

34.  The  non-joinder  of  parties  can  lie  taken  advantage  of  by  answer,  where  it  does 
not  appear  upon  the  face  of  the  comi)laint. —  Crooke  v.  O'lliyyins,  14  How.  Pr.,  154. 

/  ^  C  (P  47.  The  counter  claim  mentioned  in  the  last  section  shall  be  one 
existing  in  favor  of  the  tlcfeiulant,  and  against  a  plaintiff,  between 
whom  a  several  judgment  might  be  had  in  the  action,  and  arishig  out 
of  one  of  the  following  causes  of  action  : 

1st.  A  cause  of  action  arising  out  of  the  transaction  set  forth  in 


§48  COUNTER   CLAIM.  61 

tlie  complaint  as  the  foundation  of  the  plaintiff's  claim,  or  connected 
Avitli  the  subject  of  the  action  : 

2d.  In  an  action  arising  upon  contract,  any  other  cause  of  action 
arising  also  upon  contract,  and  existing  at  the  commencement  of  the 
action. 

1.  A  set-oft' mii»t  be  pleaded  in  answer. — Bernard  v.  MuUot,  1  Cal.,  368  ;  Ilicks  v. 
Green,  8  Cal.,  Jan.  T. ;  Bogardiis  v.  Parker,  7  How.  Fr.,  301. 

2.  To  authorize  a  set-oft'  at  law,  the  debts  must  be  between  the  parties  in  their  own 
rights,  and  must  be  of  the  same  kind  or  quality,  and  be  clearly  ascertained  or  liquidat- 
ed ;  thc\  must  be  certain  and  determined  debts. — Naglee  v.  Palmer,  7  Cal.,  April  T. 

3.  A  statement  of  set-otf  is  a  defense. — Ranney  v.  Smith,  6  How.  Pr.,  420  ;  Willis  v. 
Taggard,  ib.,  433. 

4.  A  counter  claim  defined  and  discussed. — Silliman  v.  Eddg,  8  ib.,  122. 

5.  A  counter  claim  is  a  cross  demand. — Davidson  v.  liemiiujton,  12  ib.,  310, 

6.  A  defendant  cannot  set  up  as  a  counter  claim  a  note  made  by  the  plaintift',  unless 
it  was  due  and  belonged  to  the  defendant  when  the  action  was  commenced. —  Van  Valen 
V.  Lapham,  13  ib.,  240  ;  5  Duer,  689.  • 

7.  After  a  set-off"  is  pleaded  and  admitted,  the  plaintiff'  cannot  discontinue  as  a  mat- 
ter of  course. — Cockle  V.  Underwood,  1  Abbott,  1;  3  Duer,  676  ;  contra,  Jlees  v.  Van 
Patten,  13  How.  Pr.,  258. 

8.  If  the  counter  claim  is  not  admitted,  the  plaintiff"  may  discontinue. — Seahord  <^- 
Roanoke  R.  R.  Co.  v.  Ward,  1  Abbott,  46  ;   Oaksmith  v  Sutherhnd,  4  ib.,  15. 

9.  A  counter  claim  may  arise  out  of  claims  either  legal  or  equitable. — Lemon  v. 
Trull,  13  How.  Pr.,  248. 

10.  Where  in  an  action  on  contract  the  plaintiff^  recovers  less  than  fifty  dollars,  hut 
extinguishes  a  counter  claim  set  up  in  the  answer  which  exceeds  that  amount,  neither 
party  is  entitled  to  costs.— A'«/<  v.  Lignot,  3  Abbott,  33,  190. 

11.  A  set-oft"  cannot  be  pleaded  by  one  of  several  defendants  sued  on  joint  liability. 
— Peabody  v.  Bloomer,  ib.,  353. 

12.  In  an  action  by  the  assignee  of  a  claim,  a  demand  existing  prior  to  the  assign- 
ment in  favor  of  the  defendant,  and  against  the  assignor,  is  unavailable  as  a  counter 
claim  ;  it  must  be  pleaded  as  a  defense. — Ferreira  v.  Depew,  4  Abbott,  131  ;  DiUage  v. 
Niles,  ib.,  253. 

13.  Counterclaims  embrace  both  set-off"  and  recoupments  under  the  old  system. — 
Pattison  v.  Richards,  22  Barb.,  143. 

14.  In  considering  a  counter  claim  upon  demurrer  to  it  for  alleged  insufficiency, 
the  facts  alleged  in  the  complaint  which  are  not  inconsistent  with  the  averments  in  the 
counter  claim,  are  to  be  taken  as  admitted. — Graham  v.  Dunnigan,  4  Abbott,  426. 

48.  When  cross  demands  have  existed  between  persons,  under 
such  circumstances,  that  if  one  had  brought  an  action  against  the 
other,  a  counter  claim  could  have  been  set  up,  neither  shall  be  depriv- 
ed of  the  benefit  thereof,  by  the  assignment  or  death  of  the  other ;  but 


62  •  ANSWER.  §49 

the  two  demands  shall  be  deemed  compensated,  so  far  as  they  equal 
each  other. 

49.  The  defendant  may  set  forth  by  answer  as  many  defenses  and 
counterclaims  as  he  may  have.  They  shall  each  be  separately  stated, 
and  the  several  defenses  shall  refer  to  the  causes  of  action  which  they 
are  intended  to  answer,  in  a  manner  by  which  they  may  be  inteUigibly 
distinguished. 

1.  Tlic  separate  grounds  of  defense,  separately  stated,  take  the  place  of  separate 
picas. —  Cobb  V.  Frazce,  4  How.  Pr.,  413. 

2.  The  court  must  take  notice  of  equitable  as  well  as  legal  set-offs  and  defenses. — 
Miller  V.  Losee,  9  ib.,  356. 

3.  Plea  in  abatement  may  be  joined  with  a  plea  in  bar. — Sweet  v.  Tuttle,  10  ib.,  40. 

4.  A  defendant  may  avail  himself  of  as  many  defenses  as  he  may  have,  but  each 
must  be  separately  stated,  and  be  consistent  in  itself. — Porter  v.  Mc Creed//,  1  Code  R., 
N.  S.,  88. 

f  f  / /)       50.     [1854.]  When  the  answer  contains  new  matter,  the  plaintiff 

• may  demur  to  the  same  for  insufficiency,  stating  in  his  demurrer  the 

grounds  thereof,  and  he  may  also  demur  to  one  or  more  of  several 
defenses  set  up  in  the  answer  ;  sham  and  irrelevant  answers  and  de- 
fenses may  be  stricken  out  on  motion,  and  upon  such  terms  as  the 
court  in  its  discretion  may  impose. 

1 .  A  sham  answer  and  defense  is  one  that  is  false  in  fivct  and  not  pleaded  in  good 
faith.  It  may  be  perfectly  good  in  form,  and  to  all  appearance  a  good  defense.  A 
frivolous  answer  is  qpe  that  shows  no  defense,  conceding  all  it  alleges  to  be  true. — 
Brown  v.  Jenison,  1  Code  R.,  N.  S.,  156  ;  Nichols  v.  Jones,  6  How.  Pr.,  355  ;  Ostrom 
V.  Birbij,  9  ib.,  57;  Flcuri/v.  Rofjer,  9  il).,  215  ;    Winne  v.  Sickles,  ib.,  217. 

2.  A  sliam  answer  is  upon  its  face  good,  but  it  sets  up  new  matter  wliicli  is  false. 

3.  A  frivolous  answer  controverts  no  material  allegation  in  tlie  complaint,  and  pre- 
sents no  tenable  defence. — Lefferts  v.  Snediker,  1  Abbott,  41 ;  Tliorn  v.  ^V.  Y.  Centnd 
Mills,  10  How.  Pr.,  19. 

4.  Where  neither  complaint  nor  answer  is  verified,  and  tlie  answer  nu-rcly  denies 
tlic  allegations  in  tiie  comjilaint,  setting  up  no  new  matter,  it  cannot  be  stricken  out  as 
shiun.— Drools  v.  Chlllon,  6  Cal.,  640  ;    Goedcl  v.  liobinson,  1  Abbott,  116. 

5.  A  verified  answer  will  not  be  stricken  out  as  sham,  if  there  is  any  evidence  tliat 
it  was  iiiterijosed  in  good  faith. — Miimm  v.  Btirnuiii,  ib.,  281. 

6.  Adiiiial  in  an  answer,  of  knowledge  or  information  sufficient  to  form  a  belief,  as 
to  matters  stated  in  a  complaint,  is  not  necessarily  sham  or  evasive,  unless  it  apjiears  that 
the  party  liad  tlie  means  of  obtaining  information  directly  witiiin  his  reach. —  Il'fs.son  v. 
Jiidd,  1  Abbott,  254. 

7.  Where  an  order  is  made  pronouncing  an  answer  frivolous,  and  proceeding  to 


§50  SHAM  AND  IRRELEVANT  PLEADINGS.  63 

declare  the  appropriate  judgment  upon  the  case,  appeal  should  be  taken  from  the  judg- 
ment and  not  from  the  order. — Martin  v.  Kanouse,  2  ib.,  390. 

8.  Under  the  authority  in  all  cases  to  demur  to  the  sufficiency  of  the  answer,  the 
defendant  maj-  in  all  cases  amend  his  answer  as  of  course. — Townsendv.  Phitf,  S  ib.,  .323 

9.  A  demurrer  will  not  be  stricken  out  as  frivolous  unless  it  is  apparent  without  ar- 
gument.— Sixpenny/  Savings  Bank  v.  Sloan,  2  ib.,  414  ;  12  How.  Pr.,  543. 

10.  A  plaintiff  has  no  right  to  adjudge  an  answer  frivolous,  and  treat  it  as  a  nullity, 
so  long  as  it  is  regularly  put  in  and  duly  verified. — Swift  v.  De  Witt,  3  How.  Pr.,  280  ; 
JIartness  v.  Bennett,  3  ib.,  289. 

11.  The  fact  that  a  demurrer  is  manifestly  not  well  taken  upon  authority,  does  not 
of  itself  of  course  render  the  demurrer  frivolous. —  The  Banlc  of  Wilmiinjton  v.  Barnes, 
4  Abbott,  226. 

12.  An  answer  to  a  complaint  on  a  promissory  note,  setting  up  matter  wlii>-h  if  prov- 
en will  call  upon  the  plaintiff  to  show  himself  to  be  a  bona  fide  endorsee  for  value  be- 
fore maturity,  is  not  to  be  stricken  out  as  sham  because  the  defendant's  affidavits  do 
not  fully  deny  the  allegations  of  the  plaintiff's  affidavits  setting  out  his  title. —  Wircj- 
mun  V.  Hicks,  6  Abbott,  17. 

13.  Irrelevant  and  redundant  matter  must  be  such  as  cannot  be  reached  by  demur- 
rer, and  also  prejudicial  to  the  adverse  party,  to  authorize  it  to  be  stricken  out. —  Wliite 
v.  Kidd,  4  How.  Pr.,  58 ;  Ili/nds  v.  Griswold,  ib.,  69. 

14.  Irrelevant  and  redundant  matter  stricken  out  of  an  answer  because  the  matter 
could  not  in  any  way  be  made  the  subject,  or  form  a  part  of  a  material  issue  in  the  ac- 
tion.—  Williams  v.  Hayes,  5  How.  Pr.,  470 ;  Lewis  v.  Kendall,  6  ib.,  69  ;  Rensselaer  Plank 
Road  Co.  V.  Wefsel,  6  ib.,  68  ;  Stewart  v.  Bouton,  6  ib.,  71. 

15.  Irrelevant  and  redundant  matter  may  be  contained  in  a  pleading  which  contains 
a  good  cause  of  action  or  defense. — Harlow  v.  Hamilton,  6  ib.,  475. 

16.  No  part  of  an  answer  ought  to  be  stricken  out  which  can  in  any  event  become 
material. — AveriU  v.  Taylor,  5  ib.,  476. 

17.  An  entire  complaint  cannot  be  stricken  out  as  irrelevant  or  redundant  on  mo- 
tion.— Benedict  v.  Bake,  6  ib.,  352. 

18.  Where  a  pleading  is  regularly  served  and  within  the  proper  time,  though  de- 
fective, so  that  the  only  question  is  upon  its  sufficiency,  it  cannot  be  disregarded  as  a 
nullity. — Strout  v.  Curran,  7  ib.,  36. 

19.  A  demurrer  will  not  lie  to  a  mere  denial  in  an  answer.  It  must  contain  new 
matter  by  way  of  defense. — Thomas  v.  Plumb,  ib.,  57  ;  Loomisy.  Dorshimer,  8  ib.,  9  ; 
Simpson  v.  Loft,  8  ib.,  234  ;  Roosa  v.  Saugerties  Co.,  8  ib.,  237  ;  Reilay  v.  Thomas,  11 
ib.  266  ;  contra,  Kneedler  v.  Sternbtirgh,  10  ib.,  67. 

20.  The  motion  to  strike  out  the  entire  answer  as  frivolous,  is  irregular. — Hall  v. 
Smith,  8  ib.,  149. 

21.  A  demurrer  to  an  answer  not  containing  new  matter  constituting  a  counter 
claim,  is  a  nullity,  on  which  no  judgment  can  be  legally  given  for  either  partj\ — Richt- 
myer  v.  Haskins,  9  How.  Pr.,  481  ;  ^fyatt  v.  Saratoga  Mutual  Ins.  Co.,  ib.,  488. 

22.  A  decision  for  judgment  on  account  of  the  frivolousness  of  the  answer,  is  an 
order  and  not  a  judgment,  but  it  is  appealable. —  Western  R.  R.  Co.  v.  Kortright,  10 
ib.,  457. 

23.  Where  an  answer  contained  ^(fo  defenses,  and  plaintiff  moved  for  judgment  for 


64  VERIFICATION.  §51 

frivolousncss  of  answer,  and  one  defense  was   held  good   and  the  other  frivolous,  litld, 
that  the  latter  defense  might  be  stricken  out. — Uecker  v.  Mitchell,  5  Abbott,  454. 

I  (r  /  /}       ^^'     -^^^''7  pleading  shall  be  subscribed  by  the  party  or  his  attor- 
\^    -^       \iiey,  and  when  tlic  complaint  is  verified  (a)  by  affidavit,  the  answer  shall 
be  verified  also,  except  as  provided  in  the  next  section. 

1.  The  word  "attorney"  refers  to  the  attorney  at  law,  and  not  in  fart.  A  pleading 
subscribed  by  an  attorney  in  fact,  without  authority  so  to  do,  is  void. — Dicey  v.  Pollock, 
7  Cal.,  Oct.T. 

2.  An  answer  unverified  to  a  verified  complaint,  may  be  stricken  out  on  motion, 
and  .application  for  a  judgment  as  upon  default  may  be  made  at  the  same  time. — Drum 
V.  Wlutiwi,  8  Cal.,  April  T. 

52.  The  verification  of  the  answer  required  in  the  last  section  may 
J  0  ii  I'    be  omitted  when  an  admission  of  the  truth  of  the  complaint  niigffi;  sub- 
ject the  party  to  prosecution  for  felony,  cr-r-^  ^-.-i^i-a.  M^tt^^A-i^jrv'^, 

1 .  This  provision  sustained  in — Drum  v.  Whiting,  8  Cal.,  April  T. ;  Blaisdell  v. 
Rai/moncl,  5  Abbott,  144. 

53.  When  an  action  is  brought  upon  a  written  instrument,  and 
the  com])laint  contains  a  copy  of  such  instrument,  or  a  copy  is  an- 
nexed thereto,  the  genuineness  and  due  execution  of  such  instrument 
shall  be  deemed  admitted,  unless  the  answer  denying  the  same  be 
verified. 

1.  In  an  action  on  a  promissory  note  by  a  special  endorsee  against  the  maker,  the 
plaintiff  must  prove  at  the  trial  the  genuineness  of  the  endorsements,  although  the  de- 
fendant has  not  denied  their  genuineness  under  oath. —  Grogany .  Ruckle,  1  Cal.,  158. 

2.  A  party  is  not  required  to  deny  an  endorsement  under  oath. — Youngsx.  Bell,  4 
Cal.,  201. 

54.  When  the  defense  to  an  action  is  founded  upon  a  written  in- 
strument and  a  copy  thereof  is  contained  in  the  answer,  or  a  copy  is 
annexed  thereto,  the  genuineness  and  due  execution  of  such  instru- 
ment shall  be  deemed  admitted,  unless  the  plaintiff  file  with-j;he"Dlerk 
five  days  previous  to  the  commencement  of  the  term  at  which  the 
action  is  to  be  tried,  an  aratfeViraciiying  the  same.  (iu.  'w^v-o^-i^  o<- 

55.  In  all  cases  of  the  verification  of  a  pleading,  the  affidavit  of 


-."p^  the  party  shall  state  that  the  same  is  true  of  his  own  knowledge,  except 
V^'^ 

(a)     In  every  action  for  a  divorce,  the  complaint  must  be  verified. — Slatutis  of  1857, 
240  ;    Wood's  Digest,  4"J1,  Art.  2G40. 


§55  VERIFICATION.  QS 

as. to  the  matters  wliicli  are  therein  stated  on  his  information  or  bohef, 
and  as  to  those  matters,  that  he  believes  it  to  be  true.  And  where 
a  pleading  is  verified,  it  shall  be  bj  the  affidavit  of  the  party,  unless 
he  be  absent  from  the  county  where  the  attorney  resides,  or  from  some 
cause  unable  to  verify  it,  or  the  facts  are  within  the  knowledge  of  his 
attorney  or  other  person  verifying  the  same.  When  the  pleading  is 
verified  hj  the  attorney,  or  any  other  person  except  the  party,  he 
shall  set  forth  in  the  affidavit  the  reasons  why  it  is  not  made  by  the 
party.  When  a  corporation  is  a  party,  the  verification  may  be  made 
by  any  officer  thereof;  or  when  the  state,  or  any  officer  thereof  in  its 
behalf,  is  a  party,  the  verification  may  be  made  by  any  person  ac- 
quainted with  the  facts,  -except  that  in  actions  prosecutecl  by  the  attor- 
ney general  in  behalf  of  the  state,  the  pleading  need  not,  in  any  case, 
be  verified. 

1.  The  objection  to  the  want  of  verification  to  tlie  declaration  should  have  been 
made  either  before  answer  or  with  the  answer.  It  conies  too  late  after  answer. — Green- 
Jield  V.  Steamer  "  Gunnell,"  6  Cal.,  67. 

2.  Where  the  complaint  is  verified,  it  is  no  error  to  allow  the  defendant  to  verify 
his  answer  before  trial,  unless  it  is  shown  that  the  plaintitf  is  thei'eby  taken  by  sui-prise. 
— Angier  v.  Masterson,  6  Cal.,  61. 

3.  The  verification  of  an  answer  may  be  omitted  whenever  the  defendant  would  be 
excused  from  testifying  as  a  witness  to  the  truth  of  any  matter  denied  by  such  answer. 
Drum  V.  Whiting,  8  Cal.,  April  T. ;  Blaisdell  v.  Raymond,  5  Abbott,  144. 

4.  "When  from  the  nature  of  the  facts  alleged,  it  must  be  presumptively  within  the 
knowledge  of  the  defendant,  the  answer  should  be  positive  one  way  or  the  other,  and 
a  denial  according  to  recollection  is  evasive.  Ana  when  the  contrary  is  not  presump- 
tively within  his  knowledge,  then  a  d^niaj  o^  all  knowledge  or  information  is  hi^ffi- 
cient. — Hu 


umphreijs  v.  McCaU^J^CayL  Jajl.  T'l ;    Curtis  v.  liichards,  ib. 

5.  The  word  "  belief"  is/to  be  takcrt  in  its  ordinary  sense,  and  means  the  actual 
conclusion  of  the  party  drawn  from  information.  Positive  knowledge  and  mere  belief 
cannot  both  exist  together. — Humphreys  v.  McCall,  8  Cal.,  Jan.  T.  « 

6.  An  affidavit  verifying  a  pleading  is  defective  in  using  the  wgii^  "information 
and  belief"  instead  of  "  information  or  belief."  It  may  however  be  amended. — Davis 
V.  Potter,  4  Hmv.  Pr.,  155. 

7.  An  atSlnicy  may  verify  in  two  cases  ;  when  the  action  is  founded  on  a  written 
instrument  itjiis  possession,  and  when  all  the  material  allegations  of  the  pleading  are  j 
within  Iiis  pc^mnal  knowledge. — Masonw.  Brown,  6  How.  Pr.,  481  ;   Treadwell.  v.  Fas-  ' 
sett,  10  ib.,  ^m.  I 

8.  Wiieij'jHe  verification  is  by  the  attorney  he  must  set  forth  his  knowledge  or  the       j 
ground  of  hii»elief  on  the  subject,  and  the  reason  why  it  was  not  made  by  the  party. — 
Fitch  Y.JBigMw,  5  ib.,  237 ;  Stannard  v.  Mattice,  7  ib.,  4  ;  People  v.  Allen,  14  ib.,  334. 

9.  The  enect  and  true  construction  of  the  oath  is,  that  so  far  as  the  matters  in  the 


66  VERIFICATION.  §55 

plcadinjT  are  M-ithin  the  knowledge  of  the  party,  they  arc  tnie,  and  as  to  the  residue,  he 
is  either  informed  or  l)elieves  them  to  be  true. — Truscott  v.  Dole,  7  ib.,  221. 

10.  If  the  comphiint  is  improperly  verified,  the  answer  maybe  pleaded  without 
verification. —  Wa(](jonery.  Brown,  8  ib.,  212. 

11.  If  the  verification  of  a  pleading  is  deemed  insufficient,  the  opposite  party  may 
test  the  question  by  omitting  to  verify  his  answer  to  it. — Strauss  v.  Parker,  9  ib.,  342. 

12.  The  verification  by  an  attorney  who  has  the  note  sued  on  in  his  possession,  is 
sufficient. — Smith  v.  RoscntlutU,  11  il).,  442  ;  contra.  Meads  v.  Gleason,  1.3  ib.,  309. 

13.  It  should  follow  the  language  of  the  code  in  the  essential  form  there  given. — 
Tibballsy.  Selfridge,  12  ib.,  64. 

14.  In  what  cases  a  verification  may  be  made  by  a  person  other  than  the  party  to  a 
record. — Meads  v.  Gleason,  13  ib.,  309. 

15.  If  it  be  doubtful  whether  the  verification  be  sufficient  or  not,  it  is  better  gene- 
rally to  treat  it  as  sufficient,  and  make  no  question  about  it. —  Wilkin  \.  Oilman,  13 
ib.,  225. 

16.  In  an  action  against  husband  and  wife  to  set  aside  a  deed  of  lands  made  to  the 
wife  by  her  father,  the  answer  of  the  defendants  should  be  verified  by  the  wife  as  well 
as  by  the  husband. — Youngsy.  Seely,  12  ib.,  39.5. 

17.  Where  an  answer  to  a  complaint  in  an  action  against  the  maker  and  two  en- 
dorsers of  a  promissory  is  verified  by  one  of  the  defendants  only,  it  is  not  sufficient ; 
each  should  verify  his  answer  whether  put  in  unitedly  or  separately. — Hull  v.  Ball,  14 
ib..  305. 

18.  The  complaint  and  answer  wore  both  verified  by  the  respective  attorneys,  on 
information  or  belief,  without  stating  the  grounds,  and  both  were  held  insufficient. 
The  answer  was  allowed  to  stand. — Bank  of  Maine  v.  Buel,  ib.,  311. 

19.  A  verified  pleading  must  be  construed  so  as  to  make  all  its  parts,  if  possible, 
harmonize  with  each  other. — Bi/le  v.  Uarrington,  4  Abbott,  421. 

20.  If  the  atlidavit  merely  states  that  the  pleading  is  true,  without  stating  that  it  is 
true  to  the  knoichdf/e  of  the  affiant,  it  is  defective.      Williams  v.  Riel,  5  Ducr,  601. 

56.  It  shall  not  be  necessary  for  a  party  to  set  fortli  in  a  ])leading 
the  items  of  an  account  therein  alleged,  but  he  shall  deliver  to  the  ad- 
verse party,  within  five  days  after  a  demand  thereof  in  writing,  a  copy 
of  the  account,  or  be  precluded  from  giving  evidence  thereof.  The 
court,  or  a  judge  thereof,  or  a  county  judge,  may  order  a  further 
account,  when  the  one  delivered  is  too  general,  or  is  defective  in  any 
particular. 

1 .  T.'ie  party  who  is  not  satisfied  with  the  bill  should  return  it  and  move  for  another. 
It  is  too  late  to  object  at  the  trial. — Dennison  v.  Smith,  1  Cal.,  437. 

2.  This  account  may  be  enforced  by  motion  at  any  time  before  trial. —  Yates  v.  Big- 
elow,  9  How.  Pr.,  18G. 

3.  An  order  for  a  bill  of  items,  although  accompanied  by  a  stay  of  proceetlitigs,  no 
longer  operates  of  itself  as  formerly,  to  enlarge  the  time  of  the  defendants  to  plead. — 
Piatt  V.  Townsend,  3  Abbott,  9. 


§60  MISCELLANEOUS   PLEADINGS.  67 

4.  A  plaintiff  is  not  bound,  in  giving  a  bill  of  particulars,  to  furnish  offsets  or  pay- 
ments which  he  has  volunteered  to  credit  defendant,  in  his  eonipluint. —  ]Vil/iamsy. 
Shaw,  4  Al)bott,  209. 

57.  If  irrelevant  or  redundant  matter  be  inserted  in  a  pleading,  it 
may  be  stricken  out  by  the  court  on  motion  of  any  person  aggrieved 
thereby. 

1.  On  a  motion  to  strike  out,  the  papers  should  point  out  the  precise  parts  at  which 
the  objections  are  aimed. — Benedict  v.  Dale,  6  How.  Pr.,  352. 

2.  This  motion  is  not  a  substitute  for  demurrer. — Harhio  v.  Hamilton,  G  How.  Pr., 
475;  Bementv.  Wisner,  1  Code  E..  N.  S.,  143. 

58.  In  an  action  for  the  recovery  of  real  property,  such  property 
shall  be  described,  with  its  metes  and  bounds,  in  the  complaint. 

1.  Where  a  declaration  describes  land  by  a  certain  name,  this  is  as  good  a  descrip- 
tion as  one  by  metes  and  bounds,  if  it  can  be  rendered  sufificiently  certain  by  evidence. — 
Castro  V.  Giil,  5  Cal.,  40. 

2.  Actions  for  the  foreclosure  of  a  mortgage  are  not  governed  by  this  section.— Emeric 
V.  Tarns,  6  Cal.,  155. 

3.  A  complaint  defective  in  a  proper  description  is  demurrable. — Duff)/  v.  Bradij,  4 
Abbott,  432. 

4.  Actions  to  enforce  a  mechanic's  lien  are  governed  by  this  section. — Montrose  v. 
Co;»ie/-,  7  Cal.,  Oct.  T.  fp '-^-^     -l^  fi- c^f^^i-^^L  ^f^.z^i^ 

59.  In  pleading  a  judgment,  or  other  determination  of  a  court  or 
officer  of  especial  jurisdiction,  it  shall  not  be  necessary  to  state  the  facts 
conferring  jurisdiction,  but  such  judgment  or  determination  may  be 
stated  to  have  been  duly  given  or  made.  If  such  allegation  be  contro- 
verted, the  party  pleading  shall  be  bound  to  establish  on  the  trial  the 
facts  conferring  jurisdiction. 

1.  It  is  a  good  defense  to  an  action  upon  a  judgment,  whether  brought  by  the  orig- 
inal judgment  creditor  or  his  assignee,  that  the  judgment  was  fraudulently  obtained. — 
Dohson  V.  Penrce,  1  Abbott,  97  ;  2  Kern.,  156. 

60.  In  pleading  the  performance  of  conditions  precedent  in  a  con- 
tract, it  shall  not  be  necessary  to  state  the  facts  showing  such  perform- 
ance ;  but  it  may  be  stated  generally  that  the  party  duly  performed  all 
the  conditions  on  his  part ;  and  if  such  allegation  be  controverted,  the 
party  pleading  shall  establish  on  the  trial  the  facts- showing  such  per- 
formance. 

1 .  "When  the  declaration  states  a  condition  precedent,  and  fails  to  aver  performance, 
the  defect  must  be  taken  advantage  of  by  demurrer. — Happe  v.  Stout,  2  Cal.,  460. 


68  MISCELLANEOUS   PLEADINGS.  §61 

2.  The  allcn;ation  that  plaintiff  fully  performed  on  his  part  all  conditions  of  his 
contract,  is  sufficiently  explicit. —  C'al.  Steam  Xav.  Co.  v.  Wiiijht,  6  Cal.,  258. 

3.  Where  a  right  is  to  accrue  upon  the  performance,  it  must  be  aveiTcd  in  order  to 
recover. — Uotjers  v.  Cody,  7  Cal.,  Oct.  T. 

4.  In  a  complaint  upon  a  bond  by  defendant  in  an  action,  either  for  the  delivery  of 
property  replevied,  or  the  release  of  property  attached,  the  conditions  precedent  of  the 
bond  must  be  set  forth  in  the  complaint. — Palmer  v.  Melvin,  6  Cal.,  651  ;  Nickerson  v. 
Chatterton,  7  Cal.,  April  T. 

5.  Where  a  person  b\^  his  contract  engages  to  do  an  act,  performance  is  not  excused 
by  an  inevitable  accident. 

Under  an  averment  of  performance  of  a  covenant,  evidence  in  excuse  of  non-perform- 
ance is  inadmissible. 

A  condition  precedent  must  be  strictly  performed,  to  entitle  a  party  to  recover. — 
Oakley  v.  Morton,  1  Kern.,  25. 

6.  Facts  showing  performance  are  to  be  stated  ;  not  circumstances,  which  are  mere 
evidence  ;  nor  mere  legal  conclusions. — Hatch  v.  Pett,  23  Barb.,  575. 

61.  In  pleading  a  private  statute,  or  a  right  derived  therefrom,  it 
shall  be  sufficient  to  refer  to  such  statute  by  its  title,  and  the  day  of 
its  passage,  and  the  court  shall  thereupon  take  judicial  notice  thereof. 

62.  In  an  action  for  libel  or  slander,  it  shall  not  be  necessary  to 
state  in  the  complaint  any  extrinsic  facts  for  the  purpose  of  showing 
the  application  to  the  plaintifif  of  the  defamatory  matter  out  of  which 
the  cause  of  action  arose  ;  but  it  shall  be  sufficient  to  state  generally, 
that  the  same  was  pubUshed  or  spoken  concerning  the  plaintiff;  and  if 
such  allegation  be  controverted,  the  plaintiff  shall  establish  on  the  trial 
that  it  was  so  published  or  spoken. 

1 .  When  the  words  are  charged  to  have  been  spoken  of  and  concerning  the  defend- 
ant, as  a  clerk  or  tradesman,  which  it  is  alleged  was  his  subsistence,  it  is  unnecessary  to 
allege  special  damage. — Butler  v.  Howes,  7  Cal.,  Jan.  T. 

2.  The  complaint,  consisting  in  words  not  on  their  face  libelous,  must  distinctly 
aver  the  extrinsic  fact  on  whicli  plaintiff  relies  to  show  the  alleged  libelous  character  of 
the  words  complained  of,  and  it  is  not  sufficient  that  this  fact  is  alleged  by  way  of  innu- 
endo.— Caldwell  v.  Raymond,  2  Abbott,  193. 

3.  A  statement  of  the  tenor  and  effect  of  the  words  complained  of,  in  an  action  for 
slander,  is  bad  pleading.     The  words  spoken  should  be  stated. — Forsyth  v.  Edmistou, 

ib.,  430  ;  5  Ducr,  653. 

4.  If  the  slander  be  spoken  of  a  married  woman,  and  the  words  be  actionable  per  se, 
the  husband  and  wife  must  join  in  tlie  action  ;  if  not  actionable  per  sc,  the  husband  must 
sue  alone. — Klein  v.  Ilcntz,  2  Ducr,  633. 

5.  The  jury  are  at  liberty  to  give  exemplary  damages,  if  the  evidence  satisfies  them 
that  the  defendant  published  the  lii)el  with  intent  to  injure  the  character  or  feelings  of 
the  plaiutift",  or  to  break  up  his  business. — Dennett  v.  Fry,  4  Ducr,  247. 


§63  LIBEL    OR    SLANDER.  69 

6.  Several  causes  of  action  in  slander  cannot  be  united  in  the  same  complaint,  un- 
less they  are  separateh'  stated. — Pike  v.  Van  Wormcr,  5  How.  Pr.,  171. 

7.  It  is  not  irrelevant  for  the  plaintiff  to  allege  the  facts  which  he  would  he  allowed 
upon  the  trial  to  prove  in  support  of  his  action. — Deijo  v.  BrumhviP,  \:\  ih.,  221. 

8.  The  otTice  of  an  innuendo  is  to  connect  the  words,  published  or  spoken,  with  the 
persons  or  facts,  and  extrinsic  circumstances  previously  named,  and  set  forth  in  the  in- 
ducement, and  to  explain  their  apiilication  thereto  ;  and  being  merely  explanatory,  can- 
not enlarge  the  sense  of  words,  or  supply  or  alter  them  when  they  arc  dericicnt. — Blais- 
dell  V.  Raiimond,  14  ib.,  265. 

9.  The  time  of  uttering  the  slander,  as  alleged  in  the  complaint,  may  be  depart- 
ed from  in  evidence.  Such  a  variance  is  wholly  immaterial. — Potter  v.  Thompson,  22 
Barb.,  87. 

10.  It  is  not  necessary  to  set  out  the  whole  of  the  obnoxious  publication,  but  the 
pleader  may  extract  only  particular  passages  complained  of,  provided  their  sense  be 
clear  and  distinct. —  Culver  v.  Van  Anden,  4  Abbott,  375. 

11.  Where  the  words  alleged  in  a  complaint  for  libel  are  fairly  susceptil)le  of  a  con- 
struction which  would  render  them  libelous,  the  complaint  will  be  sustained  n])on  de- 
murrer, although  the  words  may  be  interpreted  in  a  way  which  would  render  them  inno- 
cent.—  Wesley  v.  Bennett,  5  ib.,  498. 

12.  Where  the  answer  contained,  1st,  a  denial  of  the  publication,  and  2d,  matter  in 
justification  and  excuse,  and  the  plaintiff  demurred  to  the  answer  for  insufficiency,  spe- 
cifying as  grounds  of  demurrer  objections  only  to  the  matter  of  justification  and  excuse, 
and  judgment  was  given  for  the  plaintiff  on  the  demurrer;  held,  that  the  demurrer  had 
Inference  only  to  the  portion  of  the  answer  objected  to,  and  that  by  the  judgment  the 
denial  of  the  publication  was  not  struck  out  of  the  answer. — Matthews  v.  Beach,  4  Sold., 
173. 

63.  In  the  actions  mentioned  in  the  last  section,  the  defendant 
may,  in  his  answer,  allege  both  the  truth  of  the  matter  charged  as  de- 
famatory, and  any  mitigating  circumstances  to  reduce  the  amount  of 
damages  ;  and  whether  he  prove  the  justification  or  not,  he  may  give 
in  evidence  the  mitigating  circumstances. 

1.  The  defendant  may  prove,  in  mitigation  of  damages,  facts  and  circumstances 
which  disprove  malice,  although  they  tend  to  establish  the  truth  of  the  defamatory 
charge.  It  is  not  necessary  that  the  answer  should  allege  the  truth  of  tlie  charge  com- 
plained of,  to  entitle  the  defendant  to  aver  and  prove  such  facts  and  circumstances  to 
reduce  the  amount  of  damages. — Bush  v.  Prosser,  1  Kern.,  347. 

2.  Accordingly,  where  in  an  action  for  charging  the  plaintiff  with  kecjjing  a  house  of 
ill-fame,  the  answer  denied  the  complaint,  and  as  a  partial  defense  alleged  lewd  and  las- 
civious conduct  by  the  plaintiff's  family,  not  amounting  to  a  justification  of  the  charge  • 
held,  that  the  evidence  of  such  conduct  was  competent  to  reduce  the  amount  of  dam- 
ages.— lb. ;  Anonymous,  6  How.  Pr.,  160  ;  Ileaton  v.  JVri/jht,  10  ib.,  79  ;  T  «»  Benscho- 
ton  v.  Yaple,  13  ib.,  97. 

3.  Where  the  defendant  denies  the  charges  in  the  complaint,  he  cannot  set  out  in  his 
answer  matters  in  mitigation  of  damages,  which  do  not  constitute  a  defense  to  the  ac- 
tion, or  which  could  not  be  proven  on  the  trial. —  (I'raham  v.  Stone,  6  How.  I'r.,  15. 


70  UNITING    CAUSES    OF   ACTIOX.  §G4 

4.  In  plciulinp;  a  (1cfonf?e,  mitip;atinjr  circumstances  may  be  alleged  in  justification, 
but  not  otherwise. —  Graham  v.  Stone,  ib.;  Buddimjton  v.  Davis,  ib.,  401. 

5.  In  slander  an  answer  jitsti/i/iiifj  the  speaking  of  the  words,  must  confess  the  speak- 
ing thereof. — Anibal  v.  Hunter,  ib.,  255  ;   Ormshy  v,  DowjUis  2  Abbott,  407. 

6.  The  defendant  may  prove  the  plaintiff's  general  bad  character,  in  mitigation  of 
damages,  whether  he  justifies  or  not. — Sliks  v.  Comstorlc,  9  How.  Pr.,  48. 

7.  The  defendant  may  allege,  in  his  answer,  the  truth  of  the  charge,  in  justification, 
and  also  fac-ls  tending  to  prove  its  truth,  in  mitigation  of  damages. — Bisheij  v.  Shaw,  2 
Kern,  67. 

64,  [1855.]  The  plaintiff  may  unite  several  causes  of  action  in 
the  same  complaint,  when  they  all  arise  out  of — 

1st.  Contracts,  expi-ess  or  imphed  ;  or, 

2d.  Claims  to  recover  specific  real  property,  with  or  without  dama- 
ges, for  the  withholding  thereof,  or  for  waste  committed  thereon,  and 
the  rents  and  profits  of  the  same  ;  or, 

3d.  Claims  to  recover  specific  personal  property,  with  or  without 
damages,  for  the  withholding  thereof ;  or, 

4th.  Claims  against  a  trustee  by  virtue  of  a  contract,  or  by  opera- 
tion of  law ;  or, 

5th.  Injin-ies  to  character  ;   or, 

Cth.  Injuries  to  person  ;  or, 

7th.  Injuries  to  property.  But  the  causes  of  action  so  united  shall 
all  belong  to  only  one  of  these  classes,  and  shall  affect  all  the  parties  to 
the  action,  and  not  rc(|uire  different  places  of  trial,  and  shall  be  separ- 
ately stated. 

PnoviJed,  however,  that  an  action  for  malicious  arrest  and  prosecu- 
tion, or  either  of  them,  may  be  united  with  an  action  for  either  an  injury 
to  character,  or  to  the  person. 

Consolidation  of  actions,  see  sec.  526. 

1.  If  several  causes  of  action  arc  improperly  joined,  tlic  objection  must  be  taken 
eitiier  by  demurrer  or  answer,  or  tlie  olyeetion  will  be  deemed  to  have  l>cen  waived. 
Macondrai/  v.  Simmons,  I  Cal.,  393. 

2.  Indebitatus  assumpsit  for  rent  will  not  lie  in  favor  of  a  stranger  for  the  purpose 
of  trying  his  title ;  or  l)y  one  of  two  litigant  parties  claiming  the  land.  This  action  de- 
pending not  upon  the  validity  of  pluintift's  title,  but  upon  a  contract  expressed  or  im- 
]^VKd.— Sampson  v.  Shaeffh;  3  Cal.,  196. 

."!.  Tiie  riglit  to  recover  for  use  and  occupation  is  founded  on  contract  alone. — 0' Con- 
ner v.  CorliitI,  3  Cal.,  370. 


§66  UNITING   CAUSES    OF   ACTION.  71 

4.  Value  of  property  destroyed,  and  damages  for  the  same,  maj^  be  joined. —  Ttnde- 
sen  V.  Marshall,  3  Cal.,  440. 

5.  A  plaintitl"  lias  a  riglit  to  waive  a  tort  as  against  factors,  and  to  bring  his  action 
to  compel  tiieni  to  account,  and  for  the  net  proceeds  arising  from  the  sales. — Ltibert  v. 
Cfiauviteau,  3  Cal.,  458. 

G.  Damages  for  a  personal  tort  cannot  be  united  with  a  demand  properl}'  cognizable 
in  a  court  of  cciuity. — Mayo  v.  Madden,  4  Cal.,  27. 

7.  Plaintiff  may  sue  for  real  property,  damages  for  withholding  it,  rents  and  profits, 
in  the  same  action. — Sullivan  v.  Davis,  4  Cal.,  291. 

8.  It  is  improper  to  join  an  action  of  trespass,  qtiare  rlaiisitm  fnyit,  with  ejectment 
and  prayer  for  relief  in  chancery. — Biijelow  v.  Gove,  7  Cal.,  Jan.  T. 

9.  A  complaint  containing  several  causes  of  action,  all  of  which  belong  to  one  of  the 
classes  mentioned  in  this  section,  and  affect  all  the  parties  to  the  action,  and  do  not  re- 
quire separate  places  of  trial,  cannot  be  demun-ed  to  on  the  ground  that  such  causes  of 
action  are  improperly  united,  merely  because  they  are  not  separately  stated.  The  rem- 
edy is  by  motion  that  the  complaint  be  made  more  definite  and  certain,  so  as  to  sliow 
on  its  face  what  is  relied  upon  as  constituting  a  separate  cause  of  action. — Ilursen  v. 
Bayaud,  5  Duer,  656. 

10.  Distinct  accounts  between  the  same  parties  may  be  sued  upon  separately. — Se- 
cor  V.  Sturgis,  2  Abbott,  69. 

11.  Several  causes  of  action  arising  on  several  judgments,  may  be  joined  in  one  ac- 
tion.— Bank  of  N.  America  v.  Saydam,  1  Code  R.,  N.  S.,  325. 

12.  A  cause  of  action  for  malicious  prosecution  may  be  joined  with  a  cause  of  action 
for  slander. —  ]]'utson  v.  Hazzard,  3  Code  R.,  218. 

65.  [1854.]  '^Yev^  material  allegation  of  the  complaint,  when  it  •    '^  i  /^/ 
is  verified,  not  specifically  controverted  by  the  ansAver,  shall,  for^the 

purpose  of  tha  action,  be  taken  as  true.  The  allegation  of  new  matter 
in  the  answei-shall,  on  trial,  be  deemed  controverted  by  the  adverse 
party,  as  upon  a  direct  denial  or  avoidance,  as  the  case  may  require. 

1.  A  general  and  sweeping  denial  in  a  verified  answer  is  not  sufRcient  to  controvert 
specifically  eiLch  material  allegation  of  the  complaint. — Deivey  v.  Bowman,  7  Cal.,  Julv 
T. ;  Humphreys  v.  McCall,  8  Cal.,  Jan.  T. 

66.  A  material  allegation  in  a  pleading  Is  one  essential  to  the  claim 
or  defense,  and  which  could  not  be  stricken  from  the  pleading  without 
leaving  it  insufficient. 

1.  An  averment  of  copartnership  is  immaterial  in  a  complaint,  when  the  execution 
of  the  note  sued  on  is  not  controverted,  and  becomes  the  material  issue  in  the  action. 
It  is  not  essential  to  the  claim. —  WhitweU.  v.  Thomas,  8  Cal.,  April  T. 

2.  Mayor  of  Albany  v.  Cunliff,  2  Coms.,  165. 


1i 


AMENDMENTS.  §67 


67.  [1854.]   After  demurrer,  and  before  the  trial  of  issue  on  de- 
murrer, either  partj  may,  within  ten  days,  amend  any  pleading  demur- 

^^,  ,r    /^-  i-ed  to,  of  course,  and  without  costs,  filing  the  same  as  amended,  and 
serving  a  copy  thereof  upon  the   adverse  party  or  his  attorney,  who 
/  ^6/^     shall  have  ten  days  to  answer  or  demur  thereto,  if  the  pleading  be  a 
■■ —  complaint,  or  to  demur  thereto  if  it  be  an  answer;  but  a  party  shall 

not  so  amend  more  than  once.  When  a  demurrer  to  a  complaint  is 
overruled,  and  there  is  no  answer  filed,  the  court  may,  upon  such  terms 
as  shall  be  just,  and  upon  payment  of  costs,  allow  the  defendant  to  file 
an  answer.  If  a  demurrer  to  the  answer  be  overruled,  the  facts  allcii- 
cd  in  the  answer  shall  still  be  considered  as  denied. 

1.  A  i)lca(ling  which  does  not  admit  of  an  answer  cannot  be  amended  under  this 
section. — Plumb  v.  Whipples,  7  IIow.  Pr.,  411. 

68.  [1853.]  The  court  may,  in  furtherance  of  justice,  and  on 
^,„„J^,  such  terms  as  may  be  proper,  amend  any  pleading  or  proceedings  by 
J  2  ■  ' S .  /^  adding  or  striking  out  the  name  of  any  party,  or  by  correcting  a  mis- 
fi'    V  ;ii  ^      take  in  the  name   of  a  party,  or  a  mistake  in  any  other  respect,  and 

may,  upon  like  terms,  enlarge  the  time  for  an  answer  or  demurrer,  or 
demurrer  to  an  answer  filed.  The  court  may  likcAvise,  upon  affidavit 
showing  good  cause  therefor,  after  notice  to  the  adverse  part}',  allow, 
upon  such  terms  as  may  be  just,  an  amendment  to  any  pleading  or  pro- 
ceeding in  other  particulars  ;  and  may,  upon  like  terms,  allow  an  an- 
swer to  be  made  after  the  time  limited  by  this  act ;  and  may,  upon 
such  terms  as  may  be  just,  and  upon  payment  of  costs,  relieve  a  party 
//f  aLl,  or  his  legal  representatives  from  a  judgment,  order,  or  other  proceeding 
taken  against  him  through  his  mistake,  inadvertence,  surprise,  or  ex- 
cusable neglect.  When  from  any  cause  the  summons  and  a  copy  of  the 
complaint  in  an  action  have  not  been  personally  served  on  the  defend- 
ant, the  court  may  allow,  on  such  terms  as  may  be  just,  such  defend- 
ant or  his  legal  representatives,  at  any  time  within  six  months  after  the 
rendition  of  any  judgment  in  such  action,  to  answer  to  the  merits  of  the 
original  action. 

1.  The  court  may  on  trial  amend  hy  addinj^  or  striking  out  parties. — Acquital  v. 
Crowell,  1  Cal.,  191. 

2.  Groat  latitude  is  given  to  the  courts  h)'  our  statutes  in  amending  and  altering 
pleadings. — Polorlc  \.  Iliint,  2  Cal.,  193;  CmJ:  v.  .'^jmirs,  ib.,  409  ;  Slcanis  v.  Martin, 
4  Cal.,  227. 


//// 


§69  AMENDMENTS.  73 

3.  Tlic  discovery  of  a  fraud  after  suit  hroiiglit,  would  entitle  plaiutift'so  to  shape  his 
action  as  to  include  it, —  Truehody  v,  Jacobson,  2  Cal.,  269. 

4.  An  amendment  should  be  allowed  or  directed  to  conform  the  pleadings  to  the 
facts  which  ought  to  be  in  issue,  in  order  to  enable  the  court  to  decree  fully  on  the 
merits.— Conmi/Iei/  v.  P(ck;  3  Cal,,  75  ;   IJ<uth  v,   Walthr,  4  Duer,  2:28. 

5.  A  refusal  to  allow  an  amendment  is  presumed  to  be  right,  unless  the  character  of 
the  proposed  amendment  is  shown  in  the  records. — Jessup  v.  Kinij,  4  Cal.,  331. 

6.  It  is  always  within  the  power  of  a  court,  when  exercising  proper  discretion,  to 
extend  the  time  fixed  by  law  whenever  the  ends  of  justice  would  seem  to  demand  such 
an  extension. —  IVowi  v.  Fobes,  5  Cal.,  62. 

7.  An  action  in  assumpsit  cannot  be  changed  into  an  action  in  tort  by  amendment 
of  complaint, — Ramirez  \,  Murmi/,  5  Cal.,  222. 

8.  A  defendant  may  at  any  time,  within  six  months,  come  in  and  open  a  default, 
and  answer  to  the  merits  of  the  action,  if  he  has  not  been  personalh'  served  with  pro- 
cess.— Gtij/  V.  Ide,  6  Cal.,  99  ;  Pico  v,  Corilh,  7  Cal.,  Jan.  T. 

9.  There  must  be  sufficient  grounds  set  forth  in  the  affidavit,  as  mistake,  surprise,  or 
excusable  neglect,  to  authorize  the  court  to  set  aside  the  judgment  by  default,  after  per- 
sonal service. — Ilorlanv.  Siititli,  6  Cal.,  173. 

10.  After  a  motion  for  a  non-suit  the  court  might  allow  an  amenditient  of  a  declar- 
ation if  it  does  not  operate  as  a  surprise  upon  the  defendants. — Farmer  v.  Cram,  7  Cal., 
Jan.  T. 

11.  Ignorance  of  the  law  in  not  knowing  that  an  answer  must  be  filed  in  ten  days, 
is  not  excusable  neglect. —  Chase  v.  Siimn,  8  Cal.,  Jan.  T. 

12.  It  is  only  when  the  purpose  of  the  amendment  is  to  conform  the  pleadings  of 
proceedings  to  the  facts  proven,  that  the  court  is  restricted  from  allowing  an  amend- 
ment which  changes  the  nature  of  the  claim  or  defense. — Dai/uerre  v.  Orser,  3  Abbott,  86. 

13.  Leave  will  not  be  granted  to  file  a  supplemental  complaint  which  alleges  any 
fact  known  to  the  plaintiff  at  the  time  of  commencing  his  action. — McMahon  v.  Allen, 
3  Abbott,  89. 

14.  Under  the  authority  in  all  cases  to  demur  to  the  sufficiency  of  the  answer,  the 
defendant  may  in  all  cases  amend  his  answer  as  of  course. — Townsend  v.  Phtt,  ib.,  323. 

15.  •  The  court  has  power  to  open  a  judgment  by  default  in  case  of  surprise  or  excus- 
able neglect. — Mann  v.  Pmvost,  ib.,  446. 

16.  An  amended  pleading  takes  the  jdace  of  and  supersedes  the  original. — Seneca 
Cd.'Bank  v.  Garlimjliouse,  4  How.  Pr.,  174. 

17  An  order  made  by  a  judge  at  chambers,  enlarging  the  time  to  answer,  is  an  ex- 
tension of  the  time  to  demur. — Brodhead  v,  Brodhead,  4  ib.,  308. 

18.  Being  allowed  to  come  in  and  defend  does  not  of  itself  open  the  judgment,  nor 
stay  proceedings  upon  the  e.xecution. — Carswell  v  Neville,  12  ib.,  445. 

19.  This  section  was  intended  mainly,  if  not  solely,  to  allow  amendments  in  order 
to  sustain  a  judgment,  not  for  the  purpose  of  reversing  it. —  Gasper  v.  Adams,  24  Barb. 
287. 

69.  When  the  plaintiff  is  ignorant  of  the  name  of  a  defendant,  such 
defendant  may  be  designated  in  any  pleading  or  proceeding  bv  any 


74  ARREST    AND    BAIL.  §70 

name  ;  and  when  liis  true  name  is  discovered,  the  pleading  or  proceed- 
ing may  be  amended  accordingly. 

1.  Mon/an  v.  T/irift,  2  Cal.,  562. 

2.  The  name  of  the  defendant  cannot  be  changed  after  sen'ice,  wnthout  notice. — 
M'Nalleij  V.  Mutt,  3  Cal.,  285  ;  Smith  v.  Ctirtis,  1  Cal.,  Apr.  T. 

2*  If  a  name  be  altered,  and  the  party  afterwards  appear  and  answer,  the  alteration 
will  be  held  valid. — Smith  \.  Curtis,  7  Cal.,  April  T. 

4.  It  is  not  allowable  for  a  plaintiff  to  use  a  fictitious  .name  at  his  discretion,  but 
only  wiicn  he  is  ignorant  of  the  true  name. —  CraiHhiU  v.  Beach,  7  How.  Pr.,  271. 

70.  In  the  construction  of  a  pleading  for  the  purpose  of  determin- 
ing its  effect,  its  allegations  shall  be  liberally  construed,  with  a  view 
to  substantial  justice  between  the  parties. 

71.  The  court  shall,  iu  every  stage  of  an  action,  disregard  any 
error  or  defect  in  the  pleadings  or  proceedmgs,  which  shall  not  affect 
the  substantial  rights  of  the  parties,  and  no  judgment  shall  be  reversed 
or  affected  by  reason  of  such  error  or  defect. 

1.  The  error  in  an  answer  entitled  in  the  "supreme,"  instead  of  the  "superior," 
court,  may  be  disregarded. —  Williams  v.  Sholto,  4  Sand.,  641. 


TITLE     V. 

OF   THE    PROVISIONAL    REMEDIES    IX    CIVIL    ACTIONS. 

CHAPTER  I. 

ARREST    AND    BAIL. 

72.  No  person  shall  be  arrested  in  a  civil  action,  except  as  pre- 
scribed by  this  act. 

73.  The  defendant  may  be  arrested  as  hereinafter  prescribed,  in 
the  following  cases  arising  after  the  passage  of  this  act :  («) 

(a)  Statutes  of  1850,  407;  Wood's  Digest,  252,  Art.  1381. 

An  act  for  the  relief  of  persons  imprisoned  on  civil  jiroccss,  }>assed  April  22,  1850. 

1 .     Every  person  confined  in  jail  on  an  execution  issued  on  a  judgment,  rendered  in 
a  civil  action,  sliall  be  discharged  therefrom  upon  the  conditions  hereinafter  specified. 


§73  ARREST    AND    BAIL.  75 

1st.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  upon  contract  express  or  implied,  when  the  defendant 
is  about  to  depart  from  the  State,  with  intent  to  defraud  his  credilors, 
or  when  the  action  is  for  willful  injury  to  pgCS»m,  fayghdigagter,^  t6 
property,  knowing  the  property  to  belong  to  another. 

2d.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  propert;^ em- 
bezzled, or  fraudulently  misapplied,  or  converted  to  his  own  use,  by  a 
public  officer,  or  an  officer  of  a  corporation,  or  an  attorney,  factor,  bro- 
ker, agent,  or  clerk,  in  the  course  of  his  employment  as  such,  or  by 
any  other  person  in  a  fiduciary  capacity,  or  for  misconduct  or  neglect 
in  office,  or  in  a  professional  employment ;  or  for  a  willful  violation  of 
duty. 

3d.  In  an  action  to  recover  the  possession  of  personal  property,  un- 
justly detained,  when  the  property,  or  any  part  thereof,  has  been  con- 
cealed, removed,  or  disposed  of,  so  that  it  cannot  be  found  or  taken  b}' 
the  sheriif. 


2.  Such  person  shall  cause  a  notice  in  writing  to  be  given  to  the  plaintiff,  his  agent, 
or  attorney,  tliat  at  a  certain  time  and  place  he  will  apply  to  the  judge  of  the  district 
court  of  tlie  county  in  which  such  person  may  be  confined  ;  or,  in  case  of  his  absence,  or 
inability  to  act,  to  the  judge  of  the  county  court  of  the  county  in  which  such  person  mav 
be  imprisoned,  for  the  purpose  of  obtaining  a  discharge  from  his  imprisonment. 

3.  Such  notice  shall  be  served  upon  the  plaintiff,  his  agent,  or  attorney,  one  day  at 
least  before  the  hearing  of  the  application,  in  cases  where  the  plaintiff,  his  agent,  or  at- 
torney, lives  within  twenty  miles  of  the  place  of  hearing ;  and  one  day  shall  l)e  added 
for  every  additional  twenty  miles  that  such  person  may  reside  from  the  place  of  hearino-. 

4.  At  the  time  and  place  specified  in  the  notice,  such  person  shall  be  taken  before 
such  judge,  who  shall  examine  him  under  oath  concerning  his  estate,  and  property,  and 
effects,  and  the  disposal  thereof,  and  his  ability  to  pay  the  judgment  for  which  he  is 
committed  ;  and  such  judge  shall  also  hear  any  other  legal  and  pertinent  evidence  that 
may  be  produced  by  the  debtor  or  the  creditor. 

5.  The  plaintiff  in  the  action  may,  upon  such  examination,  propose  tp  the  prisoner 
any  interrogatories  pertinent  to  the  inquiry,  and  they  shall,  if  required  by  him,  be  pro- 
posed and  answered  in  writing ;  and  the  answer  shall  be  signed  and  sworn  to  by  the 
prisoner. 

6.  If,  upon  the  examination,  the  judge  shall  be  satisfied  that  the  prisoner  is  entitled 
to  his  discharge,  such  judge  shall  administer  to  him  the  following  oath,  to  wit :  "  I  do 
solemnly  swear  that  I  have  not  any  estate,  real  or  personal,  to  the  amount  of  fifty  dol- 
lars, except  such  as  is  by  law  exempted  from  being  taken  in  execution  ;  and  that  I  have 
not  any  other  estate  now  conveyed  or  concealed,  or  in  any  way  disposed  of,  with  de- 
sign to  secure  the  same  to  my  use,  or  to  defraud  my  creditors,  so  help  me  God." 


76  ARREST    AND    BAIL.  §73 

4th.  When  the  defendant  has  been  j^uilty  of  a  fraud  in  contractuig 
the  debt,  or  incurring  the  obhgation  for  which  the  action  is  brought ; 
or  in  concealing  or  disposing  of  the  property,  for  the  taking,  detention, 
or  conversion  of  -which  the  action  is  brought. 

5th.  AVhen  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 

1 .  One  partner  cannot  arrest  another,  suing  to  recover  money. — Soule  v.  ITayward, 
1  Cal.,  345  ;   Canj  v.  Williams,  1  Duer,  667. 

2.  A  party  will  be  discharged  from  arrest  where  the  process,  though  proper  in  form, 
has  been  issued  in  an  improper  case. — Soule  v.  Iluijimrd,  1  Cal.,  343. 

3.  The  representations,  if  false  or  fraudulent,  must  precede  the  contract. — Snow  v. 
Halstead,  1  Cal.,  359. 

4.  In  a  suit  to  recover  money  received  by  a  person  as  agent,  he  cannot  be  arrested 
without  showing  some  fraudulent  conduct  on  his  part,  or  a  demand  on  him  by  the  prin- 
cipal, and  a  refusal  on  his  part  to  pay.  An  arrest  in  such  case  is  prohibited  b}'  section 
15,  art.  I,  of  the  constitution. — Ex  parte  Iloldforlh,  1  Cal.,  438. 

7.  After  administering  the  oath,  the  judge  shall  issue  an  order  that  the  prisoner  be 
discharged  from  custody,  if  he  be  imprisoned  for  no  other  cause  ;  and  the  officer,  upon 
the  service  of  such  order,  shall  discharge  the  prisoner  forthwith,  if  he  be  imprisoned  for 
no  other  cause. 

8.  If  such  judge  should  not  discharge  the  prisoner,  he  may  apply  for  his  discharge 
at  the  end  of  every  succeeding  ten  days,  in  the  same  manner  as  above  provided,  and  the 
same  proceedings  shall  thereupon  be  had. 

9.  The  prisoner  after  being  so  discharged  shall  be  forever  exempted  from  arrest  or 
imprisonment  for  the  same  debt,  unless  he  shall  be  convicted  of  having  willfully  sworn 
falsely  upon  his  examination  before  the  judge,  or  in  taking  the  oath  before  prescribed. 

10.  The  judgment  against  any  prisoner,  who  is  discharged  as  aforesai<l,  shall  re- 
main in  full  force  against  any  estate  which  may  then,  or  at  any  time  afterwards,  belong 
to  him ;  and  the  plaintiff  may  take  out  a  new  execution  against  the  goods  and  estate  of 
the  prisoner  in  like  manner  as  if  he  had  never  been  committed. 

11.  The  plaintiff  in  the  action  may  at  any  time  order  the  prisoner  to  be  discharged, 
and  he  shall  not  thereafter  be  liable  to  imi)risonmcnt  for  the  same  cause  of  action. 

12.  Whenever  a  person  is  committed  to  jail  on  an  execution  issued  on  a  judgment 
recovered  in  a  civil  action,  the  creditor,  his  agent,  or  attorney,  shall  advance  to  the 
jailor,  within  twenty-four  hours  after  such  commitment,  suthcient  money  to  jtay  for  the 
support  of  said  prisoner  during  the  time  for  which  he  may  i)c  imprisoned  ;  and  in  case 
the  money  should  not  be  so  advanced,  or  if,  during  the  time  the  prisoner  may  be  in  con- 
finement, the  money  should  be  expended  in  the  support  of  such  |)risoner,  and  the  cred- 
itor should  neglect,  for  twenty-four  hours,  to  advance  such  further  sum  as  might  be  ne- 
cessary for  his  support,  the  jailor  shall  forthwith  discharge  such  jirisoncr  from  custody, 
and  such  discharge  shall  have  the  same  effect  as  a  discharge  by  order  of  the  creditor. 


§75  AFFIDAVIT    OX    ARREST.  77 

5.  A  person  once  arrested  and  discharged,  cannot  be  re-arrcstcd  in  the  same  action. 
McGilcenj  V.  Morvlwad,  2  Cal.,  607. 

6.  The  jiuljiinent  should  liiul  the  facts  of  tlie  fraud  upon  wliich  tlie  defendant  can 
only  be  imprisoned  on  final  process,  or  his  bail  become  forfeit. — Matoon  v.  Eder,  6  Cal., 
57  ;  Ex  jxirle  Cutis,  ib. 

7.  The  provision  of  arrest  for  willful  injury  to  person  or  character,  is  in  conflict 
with  the  constitution. — Ex-jxirte  Prader,  C  Cal.,  239. 

8.  2d.  An  allegation,  that  the  money  was  collected  and  received  by  the  defendant, 
as  the  a<;cnt  or  attorney  in  fact  of  the  plaintiff,  is  in  the  alternative  form,  and  cannot  be 
permitted.  The  character  or  capacity  must  be  averred  in  direct  and  positive  terms,  or 
the  charge  must  fall. — Porter  v.  Hermann,  7  Cal.,  Oct.  T. 

9.  4th.  The  word  "obligation  "  is  here  used  tMjuivalent  to  "  legal  liability  or  legal 
A\itj."—Crandall  v.  Ryan,  5  Abbott,  162. 

10.  Fraud  may  consist  in  the  misrepresentation  or  concealment  of  material  facts, 
and  may  be  inferred  from  the  circumstances  and  conditions  of  the  parties  contracting. 
Bc/den  V.  Ilenriqnez,  7  Cal.,  July  T. 

74.  An  order  for  the  arrest  of  the  defendant  shall  be  obtained 
from  a  judge  of  the  court  hi  which  the  action  is  brought,  or  from  a 
county  judge. 

75.  The  order  may  be  made  whenever  it  shall  appear  to  the  judge, 
by  tl;e  affidavit  of  the  plaintiff,  or  some  other  person,  that  a  sufficient 
cause  of  action  exists ;  and  that  the  case  is  one  of  those  mentioned  in 
section  seventy-three.  The  affidavit  shall  be  either  positive,  or  upon 
information  and  belief ;  and  when  upon  information  and  belief,  it  shall 
state  the  facts  upon  which  the  information  and  belief  are  founded.  If 
an  order  of  arrest  be  made,  the  affidavit  shall  be  filed  with  the  clerk 
of  the  county. 

1.  The  affidavit  must  contain  sutficient  fiicts,  and  must  not  refer  to  the  complaint 
for  the  matter,  without  setting  forth  sufficient  of  itself — McGilvenj  v.  More/wad,  2  Cal., 
607. 

2.  It  is  sufficient  if  the  circumstances  set  forth  in  the  affidavit  would  induce  a  reas- 
onable belief  that  fraud  was  committed. — Southworth  v.  Resinc/,  .3  Cal.,  377. 

3.  An  affidavit  on  information  and  belief,  followed  by  an  averment  of  the  facts  on 
which  the  belief  is  founded,  also  stated  on  information  and  belief,  is  sufficient. — Matoon 
V.  Eder,  6  Cal.,  57. 

4.  Until  the  complaint  is  filed,  and  suit  thereby  commenced,  no  order  of  arrest  can 
issue. — Ex-j>arte  Cohen,  6  Cal.,  318. 

5.  Putting  in  and  perfecting  bail  is  a  waiver  of  all  defects  in  the  affidavit. — Stewart 
V.  Howard,  15  Barb.,  26. 

6.  In  the  affidavit  upon  which  an  order  of  arrest  is  to  be  founded,  two  things  must 
be  made  to  appear ;  that  a  sufficient  cause  of  action  exists,  and  that  it  is  among  those 


78  UNDERTAKING  ON  ARREST.  §76 

specified  in  section  73.     It  is  not  sufficient  for  a  party  to  state  that  "his  case  is  one  of 
those  mentioned  in  section  73."    He  must  state  the  facts. — Pindar  v.  Black,  4  How 
Pr.,  95. 

7.  In  an  affidavit  for  the  arrest  of  tiie  defendant  for  fraudulently  obtaining  goods, 
the  facts  within  the  knowledge  of  the  plaintiff  must  he  stated  positively.  What  is  stated 
on  information,  should  be  set  out  particularly,  and  good  reasons  given  why  a  positive 
statement  cannot  be  procured. —  WhitlocL-  v.  Roth,  5  ib.,  143. 

8.  It  is  not  necessary  to  state  in  the  affidavit  for  an  arrest,  that  a  snmrnons  has  been 
issued. — Conklin  v.  Dutcher,  5  ib.,  386. 

9.  Where  the  right  to  arrest  the  defendant  is  derived  from  the  nature  of  the  action 
c.  g.,  in  an  action  for  embezzlement,  the  defendant  will  not  be  allowed  upon  a  motion  to 
discharge  from  an-est,  affidavits  to  show  that  there  is  no  cause  of  action. —  Geller  v. 
Seims,  4  Abbott,  103. 

10.  Where  an  order  of  arrest  is  granted  on  plaintiff's  own  affidavit,  and  a  discharge 
is  moved  for  solely  on  the  original  papers,  the  affidavit  of  plaintiff  being  uncontradicted 
is  to  be  taken  as  true ;  but  it  is  to  be  strictly  construed  against  plaintiff.  The  defend" 
ant  was  discharged  from  arrest  on  the  ground  that  the  allegations  of  the  plaintiff's  affi' 
davit,  on  which  alone  the  arrest  was  ordered,  were  insufficient  to  establish  an  intent  on 
the  part  of  the  defendant  to  defraud  his  creditors. — Ilathonie  v.  Hall,  4  Abbott,  227. 

11.  The  affidavit  must  state  the  facts  and  circumstances  to  establish  the  grounds  of 
the  application  for  the  arrest;  stating  the  single  fact  that  the  defendant  intends  to  depart 
from  the  State  with  intent  to  defraud  his  creditors,  is  not  sufficient  legal  evidence. — 
Furman  v.  Walter,  13  How.  Pr.,  348. 

70.  Before  making  the  order,  the  judge  shall  require  a  written 
undertaking  on  the  part  of  the  plaintiff,  with  sureties,  to  the  eftect  that 
if  the  defendant  recover  judgment,  the  plaintiff"  will  pay  all  costs  and 
charges  that  may  be  awarded  to  the  defendant,  and  all  damages  which 
he  may  sustain  by  reason  of  the  arrest,  not  exceeding  the  sum  speci- 
fied in  the  undertaking,  which  shall  be  at  least  five  hundred  dollars. 
Each  of  the  sureties  shall  annex  to  the  undertaking  an  affidavit  that  he 
is  a  resident  and  householder,  or  freeholder,  within  the  State,  and 
worth  double  the  sum  specified  in  the  undertaking,  over  and  above  all 
his  debts  and  liabilities,  exclusive  of  property  exempt  from  execution. 
The  undertaking  shall  be  filed  with  the  clerk  of  the  court. 

Sec  Sec.  650. 

1.  A  defective  undertaking  may  be  allowed  to  be  amended,  on  motion  to  discharge 
from  arrest. — Bellinger  v.  Gardner,  2  Abbott,  441. 

2.  The  undertaking  for  an  arrest  need  not  be  executed  by  the  plaintiff  personally. 
Asking  V.  I/canis,  3  ib.,  184. 

3.  When  a  foreign  state  is  a  plaintiff,  an  undertaking  accompanying  an  order  of 
arrest  signed  and  acknowledged  I)y  its  resident  minister  on  the  part  of  the  jilaintitf,  is  a 
valid  undertaking  within  the  provisions  of  the  code. — licpahlic  of  Mexico  v.  Arrangoiz, 
5  Duer,  634. 


§82  ORDER    OF    ARREST.  79 

77.  The  order  mav  be  made  to  accompany  the  summons,  or  any- 
time afterwards,  before  judgment.  It  shall  require  the  sherift'  of  the 
county  where  the  defendant  may  be  found  forthwith  to  arrest  him  and 
hold  him  to  bail  in  a  specified  sum,  and  to  return  the  order  at  a  time 
therein  mentioned  to  the  clerk  of  the  court  in  which  the  action  is 
pending. 

78.  The  order  of  arrest,  with  a  copy  of  the  affidavit  upon  which  it 
is  made,  shall  be  delivered  to  the  sheriff,  who,  upon  arresting  the  de- 
fendant, shall  deliver  to  him  the  copy  of  the  affidavit ;  and  also,  if 
desired,  a  copy  of  the  order  of  arrest. 

79.  The  sheriff  shall  execute  the  order  by  arresting  the  defendant 
and  keeping  him  in  custody  until  discharged  by  law. 

80.  The  defendant,  at  any  time  before  execution,  shall  be  dis- 
charged from  the  arrest  either  upon  giving  bail,  or  upon  depositing  the 
amount  mentioned  in  the  order  of  arrest,  as  provided  in  this  chapter. 

81.  The  defendant  may  give  bail  by  causing  a  written  undertaking 
to  be  executed  by  two  or  more  sufficient  sureties,  stating  their  places 

'  of  residence  and  occupations,  to  the  effect  that  they  are  bound  in  the 
amount  mentioned  in  the  order  of  arrest ;  that  the  defendant  shall  at 
all  times  render  himself  amenable  to  the  process  of  the  court,  during 
the  pendency  of  the  action,  and  to  such  as  may  be  issued  to  enforce 
the  judgment  therein ;  or  that  they  will  pay  to  the  plaintiff  the  amount 
of  any  judgment  Avhich  may  be  recovered  in  the  action. 

See  Sec.  650. 

1.  The  sheriff  is  bonnd  to  take  bail  provided  they  are  sufficient.  If  lie  refuses,  he 
is  liable. — Richards  v.  Porter,  7  John.,  1.37  ;  Dash  v.  Van  Kleeck,  ib.,  477. 

82.  At  any  time  before  judgment,  or  within  ten  days  thereafter, 
the  bail  may  surrender  the  defendant  in  their  exoneration,  or  he  may 
surrender  himself  to  the  sheriff  of  the  county  where  he  was  arrested. 

1.  Where  a  party  offered  to  surrender  himself  in  discharge  of  his  sureties,  held  to 
be  a  good  surrender,  and  a  discharge  of  the  sureties  from  all  liability. — Allen  v.  Bres- 
luiier,  7  Cal.,  Oct.  T. ;  Bahb  v.  Oakley,  5  Cal.,  93. 

2.  A  judgment  by  defiiult  will  not  authorize  the  entry  of  a  judgment  on  the  allega- 
tions of  fraud,  if  the  summons  fail  to  apprise  the  defendant  of  this  fact. — Porter  v.  Her- 
mann, 7  Cal.,  Oct.  T. 


80  SURRENDER    BY    BAIL.  §83 

83.  For  the  purpose  of  surrendering  the  defendant,  the  bail  at  any 
time  or  place  before  they  are  finally  charged,  may  themselves  arrest 
him  ;  or  by  a  written  authority,  endorsed  on  a  certified  copy  of  the 
undertaking,  may  empower  the  sheriff  to  do  so.  Upon  the  arrest  of 
the  defendant  by  the  sheriff,  or  upon  his  delivery  to  the  sheriff  by  the 
bail,  or  upon  his  own  surrender,  the  bail  shall  be  exonerated  :  Provided, 
such  arrest,  dehvery  or  surrender,  take  place  before  the  expiration  of 
ten  days  after  judgment,  but  if  such  arrest,  delivery  or  surrender  be 
not  made  within  ten  days  after  judgment,  the  bail  shall  be  finally 
charged  on  their  undertaking,  and  be  bound  to  pay  the  amount  of  the 
judgment  within  ten  days  thereafter. 

1.  The  authority  to  arrest  need  not  be  signed  bj  all  the  bail.  The  authority  of  some 
is  good.     Ex-}Hirte.  Titylor,  7  How.  Pr.,  212. 

84.  [1854.]  If  the  bail  neglect  or  refuse  to  pay  the  judgment 
within  ten  days  after  they  are  finally  charged,  an  action  may  be  com- 
menced against  such  bail  for  the  amount  of  such  original  judgment. 

1 .  Bail  are  estopped  from  controverting  the  right  of  plaintiff  to  arrest.  Gregory  v. 
Levy,  12  Barb.,  GIO;  7  How.  Pr.,  37. 

2.  Sees.  83  and  84  fully  discussed  in  Mutoun  v.  Etler,  G  Cal.,  57. 

85.  The  bail  shall  also  be  exonerated  by  the  death  of  the  defend- 
ant, or  his  imprisonment  in  a  state  prison  ;  or  by  his  legal  discharge 
from  the  obligation  to  render  himself  amenable  to  the  process. 

86.  Within  the  time  limited  for  that  purpose,  the  sheriff  shall  file 
the  order  of  arrest  in  the  office  of  the  clerk  of  the  court  in  Avhich  the 
action  is  pending,  with  his  return  endorsed  thereon,  together  with  a 
copy  of  the  undertaking  of  the  bail.  The  original  undertaking  he 
shall  retain  in  his  possession  until  filed,  as  herem  provided.  The  plain- 
tiff, within  ten  days  thereafter,  may  serve  upon  the  sheriff  a  notice 
that  he  does  not  accept  the  bail,  or  he  shall  be  deemed  to  have  accept- 
ed them,  and  the  sheriff  shall  be  exonerated  from  liability.  If  no  no- 
tice be  served  within  ten  days,  the  original  undertaking  shall  be  filed 
with  the  clerk  of  the  court. 

87.  Within  five  days  after  the  receipt  of  notice,  the  sheriff  or 
defendant  may  give  to  the  plaintiff,  or  his  attorney,  notice  of  the  justi- 
fication of  the  same,  or  other  bail,  (specifying  the  places  of  residence 


§92  QUALIFICATION    OF    BAIL.  81 

and  occupations  of  the  latter,)  before  a  judge  of  the  court  or  county 
judge,  or  county  clerk,  at  a  specified  time  and  place  ;  the  time  to  be 
not  less  than  five,  nor  more  than  ten  days  thereafter,  except  by  con- 
sent of  parties.  In  case  other  bail  be  given  there  shall  be  a  new 
undertaking. 

88.  The  qualifications  of  bail  shall  be  as  follows  : 

1st.  Each  of  them  shall  be  a  resident,  and  householder,  or  free- 
holder, within  the  county. 

2d.  Each  shall  be  worth  the  amount  specified  in  the  order  of  arrest, 
or  the  amount  to  which  the  order  is  reduced,  as  provided  in  this  chap- 
ter, over  and  above  all  his  debts  and  habilities,  exclusive  of  property 
exempt  from  execution  ;  but  the  judge,  or  county  clerk,  on  justifica- 
tion, may  allow  more  than  two  sureties  to  justify  severally,  in  amounts 
less  than  that  expressed  in  the  order,  if  the  whole  justification  be 
equivalent  to  that  of  two  suflficient  bail.  ^ 

See  Sec.  650. 

89.  For  the  purpose  of  justification,  each  of  the  bail  shall  attend 
before  the  judge  or  county  clerk  at  the  time  and  place  mentioned  in 
the  notice,  and  may  be  examined  on  oath,  on  the  part  of  the  plaintiif, 
touching  his  sufficiency,  in  such  manner  as  the  judge  or  county  clerk 
in  his  discretion  may  think  proper.  The  examination  shall  be  reduced 
to  writing,  and  subscribed  by  the  bail,  if  required  by  the  plaintiff. 

90.  If  the  judge  or  clerk  find  the  bail  sufficient,  he  shall  annex 
the  examination  to  the  undertaking,  endorse  his  allowance  thereon,  and 
cause  them  to  be  filed,  and  the  sheriff"  shall  thereupon  be  exonerated 
from  liability. 

91.  The  defendant  may,  at  the  time  of  his  arrest,  instead  of  giving 
bail,  deposit  with  the  sheriff"  the  amount  mentioned  in  the  order.  In 
case  the  amount  of  the  bail  be  reduced,  as  provided  in  this  chapter, 
the  defendant  may  deposit  such  amount  instead  of  giving  bail.  In 
either  case,  the  sheriff"  shall  give  the  defendant  a  certificate  of  the  de- 
posit made,  and  the  defendant  shall  be  discharged  out  of  custody. 

92.  The  sheriff"  shall  immediately  after  the  deposit  pay  the  same 
into  court,  and  take  from  the  clerk  receiving  the  same,  two  certificates 


82  DEPOSIT   FOR   BAIL.  §93 

of  such  payment ;  the  one  of  which  he  shall  deliver  or  transmit  to  the 
plaintiff,  or  his  attorney,  and  the  other  to  the  defendant.  For  any 
default  in  making  such  payment  the  same  proceedings  may  be  had  on 
the  official  bond  of  the  sheriff,  to  collect  the  sum  deposited,  as  in  other 
cases  of  delinquency. 

93.  If  money  be  deposited,  as  provided  in  the  last  two  sections, 
bail  may  be  given,  and  may  justify  upon  notice,  at  any  time  before 
judgment ;  and  on  the  filing  of  the  undertaking  and  justification  with 
the  clerk,  the  money  deposited  shall  be  refunded  by  such  clerk  to  the 
defendant. 

94.  Where  money  shall  have  been  deposited,  if  it  remain  on  de- 
posit at  the  time  of  the  recovery  of  a  judgment  in  favor  of  the  plaintiff, 
the  clerk  shall,  under  the  direction  of  the  court,  apply  the  same  in  sat>- 
isfaction  thereof;  and  after  satisfying  the  judgment,  shall  refund  the 
Surplus,  if  any,  to  the  defendant.  If  the  judgment  be  in  favor  of  the 
defendant,  the  clerk  shall,  under  like  direction  of  the  court,  refund  to 
him  the  whole  sum  deposited  and  remaining  unapplied. 

95.  If,  after  being  arrested,  the  defendant  escape  or  be  rescued, 
the  sheriff  shall  himself  be  liable  as  bail ;  but  he  may  discharge  him- 
self from  such  liability,  by  the  giving  and  justification  of  bail,  at  any 
time  before  judgment. 

1.  A  sheriff  cannot  be  allowed  to  allege  error  either  in  the  judgment  or  process  as 
an  excuse  for  an  escape. — Hutchinson  v.  Brand,  6  How.  Pr.,  73. 

2.  Where  the  bail  given  for  the  defendant  upon  his  arrest  arc  excepted  to  and  do 
not  justify,  and  no  other  bail  arc  given,  nor  a  deposit  made,  the  sheriff  becomes  liable 
as  bail. — Buchnan  v.  Cuniley,  9  How.  Pr.,  180  ;  Sartos  v.  Mtrr<'tjues,  9  ib.,  188. 

3.  The  sheriff  may  as  bail  re-arrest  the  defendant  without  process. — Sartos  v.  Mer- 
ceques,  9  How.  Pr.,  188. 

96.  If  a  judgment  be  recovered  against  the  sheriff,  upon  his 
liability  as  bail,  and  an  execution  thereon  be  returned  unsatisfied  in 
whole  or  in  part,  the  same  proceedings  may  be  had  on  his  official  bond, 
for  the  recovery  of  the  whole  or  any  deficiency,  as  in  other  cases  of 
delin(pxency. 

97.  A  defendant  arrested  may  at  any  time  before  the  justification 
of  bail,  apply  to  the  judge  who  made  the  order,  or  the  court  hi  which 


§99  REPLEVIN.  83 

the  action  is  pending,  upon  reasonable  notice  to  the  pLaintiff  to  vacate 
the  order  of  arrest,  or  to  reduce  the  amount  of  bail.  If  the  applica- 
tion be  made  upon  affidavits,  on  the  part  of  the  defendant,  but  not 
otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other 
proofs,  in  addition  to  those  on  Avhich  the  order  of  arrest  Avas  made. 

1.  A  person  once  arrested  and  discharged  cannot  be  re-arrcsted  in  the  same  action 
upon  the  same  grounds. — McGilveri/  v.  Morehead,  2  Cal.,  607. 

2.  A  motion  to  vacate  an  order  of  arrest  must  be  made  before  the  bail  have  justified 
if  excepted  to,  or  before  the  time  to  except  expires. — Leu-is  v.  Tniesdell,  1  Code  R.,  N. 
S.,  106  ;  Barker  v.  Dillon,  ib.,  206  ;  Overill  v.  Durkee,  2  Abbott,  38.3  ;  12  How.  Pr., 
94  ;   (jdffiip)/  V.  Burton,  12  ib.,  .516. 

3.  On  a  motion  to  discharge  if  the  judge  is  satisfied  of  the  fraud,  he  should  of  course 
deny  the  motion. —  Chaj)in  v.  Secley,  13  How.  Pr.,  490  ;  Barron  v.  Sanford,  14  ib.,  443. 

98.  If  upon  such  application  it  shall  satisfactorily  appear  that  there 
was  not  sufficient  cause  for  the  arrest,  the  order  shall  be  vacated  ;  or 
if  it  satisfactorily  appear  that  the  bail  was  fixed  too  high,  the  amount 
shall  be  reduced. 


CHAPTER  II. 

CLAIMS  FOR  DELIVERY  OF  PERSONAL  PROPERTY. 

99.  The  plaintiff,  in  an  action  to  recover  the  possession  of  personal 
property,  may,  at  the  time  of  issuing  the  summons,  or  at  any  time  be- 
fore answer,  claim  the  deUvery  of  such  property  to  him,  as  provided  in 
this  chapter. 

1.  For  verdict  under  this  provision,  see  Sees.  200,  210. 

2.  "Where  the  original  taking  of  personal  property  is  tortuous,  no  demand  is  neces- 
sary— Ledleij  v.  Hai/s,  1  Cal.,  160. 

3.  Where  the  taking  is  by  an  officer  upon  proper  legal  authority,  a  demand  is  neces- 
sary in  order  to  make  him  liable  in  damages. — Daumiel  v.  Gorham,  6  Cal.,  43  ;  Taylor 
V.  Seymour,  ib.,  512. 

4.  The  bailee  of  an  officer  who  has  the  property  in  the  custody  of  the  law,  and  who 
has  receipted  for  the  same  to  the  sheriff,  agreeing  to  deliver  it  on  demand,  cannot  after- 
wards set  up  title  to  the  property  in  himself. — Bleren  v.  Freer,  8  Cal.,  Jan.  T. 

5.  Tiie  measure  of  damages  for  property  converted  is  the  value  thereof,  with  legal 
interest  from  the  time  of  conversion,  and  when  the  value  is  fluctuating,  the  plaintiff 
may  recover  the  highest  value  at  the  time  of  the  conversion  orat  any  time  afterwards. — 
Doiujlass  V.  Kraft,  8  Cal.,  April  T. 

6.  This  i)rovisional  remedy  cannot  be  maintained  against  a  party  who  has  not  in  fact 


84  AFFIDAVIT    IX    REPLEVIX.  §100 

or  in  law  the  possession  or  control  of  the  property  claimed. — Roberts  v.  Randel,  3  Sand., 
707  ;  5  How.  Pr.,  327  ;  Brockway  v.  Burnap,  12  Barb.,  347;  Drake  v.  Wakefield,  1 1  How. 
Pr.,  106. 

7.  The  jilaintift' must  prove  the  lcf,'al  title  to  be  in  himself,  or  a  special  property 
with  a  riyht  to  possession. — Dodwoiih  v.  Jones,  4  Duer,  201. 

8.  Tliis  action  abates  if  the  defendant  dies  before  verdict  or  judgment  — Hopkins  v. 
Adams,  5  Abbott,  351. 

9.  In  an  action  where  the  defendant  merely  detains  the  property,  a  demand  and  re- 
fusal must  be  averred.— Fu//er  v.  Lewis,  3  Abbott,  383  ;  13  IIow.  Pr.,  219. 

10  The  defendant  may  answer  by  general  denial,  and  set  up  a  justification  also. — 
Huckkij  V.  Oipnan,  10  How.  Pr.,  44. 

11.  This  action  is  in  the  nature  of  the  old  writ  of  replevin. — Savage  v.  Perkins,  11 
ib.,  17. 

12.  A  right  of  action  for  the  wrongful  taking,  and  conversion  of  personal  property, 
is  assignable. — McKee  v.  Judd,  2  Kern.,  622  ;  Fay  v.  Troy  and  Boston  R.  R.  Co.,  24 
Barb.,  382. 

13.  One  tenant  in  common  of  personal  property,  cannot  maintain  rejjlevin  against 
the  other,  to  acquire  possession. — Russell  v.  Alhn,  3  Kern.,  173. 

14.  A  party  was  in  jjossession  of  a  chattel  without  any  title,  when  a  creditor  upon 
whose  execution  tlie  sheriff  had  levied  upon  the  chattel,  and  also  after  notice  of  tlie 
claim  of  the  owner,  indemnifies  the  siieritf  against  responsibility  for  a  sale,  and  the 
sheriti'  thereupon  sells  the  i)roperty,  this  creditor  is  liable  in  an  action  by  the 
owner  for  its  value,  although  the  execution  in  his  favor  was  satisfied  by  a  sale  of  other 
property  previous  to  the  sale  of  the  chattel. — Ilerrin/j  v.  Iloppock,  15  New  York  R.,409. 

15.  Forwarding  merchants  who  have  made  advances  for  prior  charges  on  goods  con- 
signed to  them  for  transportation,  have  such  an  interest  in  the  goods  as  entitles  tliem  to 
maintain  this  action  against  a  third  j)erson  to  whom  the  goods  were  wrongfully  deliv- 
ered.— Fitzlim/h  v.  Wiman,  5  Sold.,  559. 

16.  Tlie  defendant  may  plead  property  in  himself  or  in  a  stranger,  or  in  any  person 
other  than  j)laintiff. — Pattison  v.  Adams,  liSilor's  Supp.,  426. 

100.  AMicre  a  delivery  is  claimed,  an  affidavit  shall  be  made  by 
the  plaintiff,  or  by  some  one  in  his  behalf,  showing  : 

1st.  That  the  plaintiff  is  the  owner  of  the  property  claimed  (partic- 
ularly describing  it,)  or  is  lawfully  entitled  to  the  possession  thereof; 

2d.  That  the  property  is  wrongfully  detained  by  the  defendant ; 

3d.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best 
knowledge,  information  and  belief ; 

4th.  That  the  same  has  not  been  taken  for  a  tax,  assessment  or  fine, 
pursuant  to  a  statute  ;  or  seized  under  an  execution,  or  an  attachment 
against  the  property  of  the  plaintiff;  or  if  so  seized,  that  it  is  by  statute 
exempt  from  such  seizure  ;  and, 

5th.  The  actual  value  of  the  property. 

1.     It  is  not  necessary  that  the  com])laint  should  corres])ond  with  the  atlidavit  as  to 


§102  UXDERTAKIXt;    IN    REPLEVIN.  85 

the  iiunilicr  and  value  of  the  articles  claimed  to  be  delivered. — Kcrrluan  v.  Bci],  10 
How.  Pr.,  213. 

2.  A  ;j;ciicral  appearance  by  defendants  is  a  waiver  of  any  irrejjjnlarity  in  the  affi- 
davits on  wiiieh  tlie  re([uisition  is  founded. — ILjdc  v.  Patterson,  1  Abbott,  248. 

101.  [1854.]  The  plaintifi"  or  his  attorney  may  thereupon  by  an 
endorsement  in  writing  upon  the  affidavit,  require  the  sheriff  of"  the 
county  "where  the  property  claimed  may  be,  to  take  the  same  from  the 
defendant. 

1 .  Tiie  sheriff  will,  however,  be  liable  to  the  owner  who  has  his  legal  remedy  against 
any  one  for  the  taking,  unless  it  be  by  virtue  of  legal  process  against  him. — Rhodes  v. 
Patterson,  3  Cal.,  469. 

102.  [1854.]  Upon  a  receipt  of  the  affidavit  and  notice,  with  a 
written  undertaking,  executed  hy  two  or  more  sufficient  sureties,  ap- 
proved by  the  sheriff,  to  the  effect  that  they  are  bound  to  the  defendant 
in  double  the  value  of  the  property,  as  stated  in  the  affidavit  for  the 
prosecution  of  the  action,  for  the  return  of  the  property  to  the  defend- 
ant, if  return  thereof  be  adjudged,  and  for  the  payment  to  him  of 
such  sum  as  may  from  any  cause  be  recovered  against  the  plaintiff,  the 
sheriff  shall  forthwith  take  the  property  described  in  the  affidavit,  if  it 
be  in  the  possession  of  the  defendant  or  his  agent,  and  retain  it  in  his 
custody.  He  shall  also,  without  delay,  serve  on  the  defendant  a  copy 
of  the  affidavit,  notice  and  undertaking,  by  delivering  the  same  to  him 
personally,  if  he  can  be  found,  or  to  his  agent  from  whose  possession 
the  property  is  taken ;  or  if  neither  can  be  found,  by  leaving  them  at 
the  usual  place  of  abode  of  either,  with  some  person  of  suitable  age 
and  discretion ;  or  if  neither  have  any  known  place  of  a1)ode,  by  put 
ting  them  in  the  nearest  post-office,  directed  to  the  defendant. 

See  Sec.  650. 

1.  Where  a  replevin  bond  substantially  conforms  to  the  act,  and  no  variation  is 
pointed  out,  the  assignees  of  the  defendants  can  maintain  an  action  upon  it. —  Wimjate 
v.Sroo/.A-,  3  Cal.,  112. 

2.  In  an  action  on  the  liond,  the  fact  that  defendant  brought  his  action  before  an  in. 
competent  tribunal  is  no  defense,  and  the  plea  that  the  title  of  property  so  reidevicd  is 
in  him,  is  bad. — McDermott  v.  Isbell,  4  Cal.,  113. 

3.  If  the  judgment  be  not  for  a  return  of  the  property  or  damages  for  its  value,  the 
bond  is  not  liable. — Chambers  v.  Waters,  7  Cal.,  April  T. 

4.  The  effect  of  this  bond  is  not  to  divest  either  the  title  or  tlie  lien  of  the  property 
from  the  other  party  ;  it  still  remains  in  custodia/etjis  to  all  intents  and  purposes. — l/iitit 
v.  Robinson,  7  Cal.,  Oct.  T. 


86  UXDERTAKIXG    IX    REPLEVIX.  §103 

5.  This  bond  is  liable  for  a  return  of  the  propertj-,  or  for  damages  on  a  failure  to 
return  in  whole  or  in  part. —  Ginaca  v.  Atvcood,  7  Cal'.,  Oct.  T. 

6.  The  sheriff  must  endorse  his  approval  on  the  undertaking. — Burns  v.  RolLins,  1 
Code  R.,  G-2. 

7.  A  bond  may  be  filed  nunc  pro  tunc  when  the  one  given  in  the  first  instance  is  de- 
fective.— Newlaiid  V.  WiUils,  1  Barb.,  20 ;  Manley  v.  Patterson,  3  Code  R.,  89. 

8  "Where  the  defendant  appears,  he  waives  the  irregularity  of  the  issuing  the  writ 
without  a  clerk's  name  to  it. — Legate  v.  LayriUe,  1  How.  Pr.,  13. 

9.  An  assignee  of  the  defendant  in  whose  favor  judgment  is  rendered,  may  main- 
tain an  action  upon  the  undertaking  of  plaintiff. — Bmcdoui  v.  Coleman,  3  Abbott,  431. 

103.  The  defendant  may,  within  two  days  after  the  service  of  a 
copy  of  the  affidavit  and  undertaking,  give  notice  to  the  sheriff  that 
he  excepts  to  the  sufficiency  of  the  sureties.  If  lie  fails  to  do  so,  he 
shall  be  deemed  tx)  have  waived  all  objection  to  them.  When  the  de- 
fendant excepts,  the  sureties  shall  justify  on  notice  in  like  manner 
as  upon  bail  on  arrest ;  and  the  sheriff  shall  be  responsible  for 
the  sufficiency  of  the  sureties  until  the  objection  to  them  is  either 
waived,  as  above  provided,  or  until  they  justify.  If  the  defendant  ex- 
cept to  the  sureties,  he  cannot  reclaim  the  property  as  provided  in  the 
next  section. 

104.  At  any  time  before  the  delivery  of  the  property  to  the  plain- 
tiff, the  defendant  may,  if  he  do  not  except  to  the  sureties  of  the  ])laiu- 
tiff,  require  the  return  thereof,  upon  giving  to  the  sheriff  a  written 
undertaking,  executed  by  two  or  more  sufficient  sureties,  to  the  effect 
that  they  are  bound  in  double  the  value  of  the  property,  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if 
such  delivery  be  adjudged,  and  for  the  payment  to  him  of  such  sum  as 
may,  for  any  cause,  be  recovered  against  the  defendant.  If  a  return 
of  the  property  be  not  so  recpiired  within  five  days  after  the  taking  and 
service  of  notice  to  the  defendant,  it  shall  be  delivered  to  the  plaintiff, 
except  as  provided  in  section  one  hundred  and  nine. 

1.  This  bond  is  assignable  by  the  sheriff. —  Wingatc  v.  Brooks,  3  Cal.,  112. 

2.  In  an  action  on  this  bond  it  must  be  alleged  that  the  defendant  neitlier  re-delivcrcd 
the  ]>roperty,  nor  paid  the  value  thereof,  as  recited  in  the  judgment. — yiickerson  v.  Chat- 
terton,  7  Cal.,  April  T. 

3.  If  tiic  defendant  has  not  excepted  to  the  sufficiency  of  the  sureties,  and  requires 
a  return  of  the  property,  he  must  claim  it  within  five  days,  or  his  right  to  a  return  is 
gone. — M'Cinin  v.  Tlwntpson,  13  IIow.  I'r.,  381. 

4.  The  officer  is  estop|)ed  by  his  return  from  denying  that  he  had  the  goods  in 
his  possession. — Kn/ilmuu  v.  Orser,  5  Ducr,  242. 


§109  JUSTIFICATION    OF   SURETIES.  87 

105.  Tlio  defendant's  sureties,  upon  notice  to  the  plaintiff  of  not 
less  than  two  nor  moi'e  than  five  days,  shall  justify  before  a  judge  or 
county  clerk,  in  the  same  manner  as  upon  bail  on  arrest ;  and  upon 
such  justification,  the  sheriff  shall  deliver  the  px'operty  to  the  defend- 
ant. The  sheriff  shall  be  responsible  for  the  defendant's  sureties  until 
they  justify,  or  until  the  justification  is  completed  or  expressly  waived, 
and  may  retain  the  property  until  that  time ;  but  if  they,  or  others  in  their 
place,  fail  to  justify  at  the  time  and  place  appointed,  he  shall  deliver 
the  property  to  the  plaintiff. 

106.  The  qualification  of  sureties  and  their  justification  shall  be 
such  as  are  prescribed  by  this  act,  in  respect  to  bail  upon  an  order  of 
arrest. 

107.  If  the  property,  or  any  part  thereof,  be  concealed  in  a  build- 
ing or  enclosure,  the  sheriff  shall  publicly  demand  its  delivery ;  if  it 
be  not  delivered,  he  shall  cause  the  building  or  enclosure  to  be  broken 
open,  and  take  the  property  into  his  possession  ;  and  if  necessary,  he 
may  call  to  his  aid  the  power  of  his  county. 

108.  When  the  sheriff  shall  have  taken  property,  as  in  this  chapter 
provided,  he  shall  keep  it  in  a  secure  place,  and  deliver  it  to  the  party 
entitled  thereto,  upon  receiving  his  lawful  fees  for  taking,  and  his  neces- 
sary expenses  for  keeping  the  same. 

109.  If  the  property  taken  be  claimed  by  any  other  person  than  the 
defendant  or  his  agent,  and  such  person  make  affidavit  of  his  title 
thereto,  or  right  to  the  possession  thereof,  stating  the  grounds  of  such  title 
or  right,  and  serve  the  same  upon  the  sheriff,  the  sherifi"  shall  not 
be  bound  to  keep  the  property,  or  deliver  it  to  the  plaintiff,  unless 
the  plaintiff,  on  demand  of  him  or  his  agent,  indemnify  the  sheriff 
against  such  claim,  by  an  undertaking,  by  two  sufficient  sureties,  ac- 
companied by  their  affidavits,  that  they  are  each  worth  double  the 
value  of  the  property  as  specified  in  the  affidavit  of  the  plaintiff,  over 
and  above  their  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution,  and  are  freeholders  or  householders  in  the  county ;  and  no 
claim  to  such  property  by  any  other  person  than  the  defendant  or  his 
agent,  shall  be  valid  against  the  sheriff,  unless  so  made. 

See  Sec.  650. 


88  ixjuxcTiox.  §110 

110.  [1854.]  The  sheriff  shall  file  the  notice,  undertaking  and 
affidavit,  with  his  proceedings  thereon,  with  the  clerk  of  the  court  in 
which  the  action  is  pending,  within  twenty  days  after  taking  the  prop- 
erty mentioned  therein. 

CHAPTER  III. 

IXJUNCTIOX.  ^ 

/ihO.  111.  An  injunction  is  a  writ  or  order,  requiring  a  person  to  refrain 
from  a  particular  act.  The  order  or  writ  may  be  granted  by  the  court  in 
which  the  action  is  brought,  or  by  a  judge  thereof,  or  by  a  county  judge ; 
and  when  made  by  a  judge  may  be  enforced  as  the  order  of  the  court. 

1.  Almsc  in  injunction  siiould  be- j:;uar(lc(l  against. — DeW'M  v.  //".ys,  2  Cal.,  463. 

2.  An  injiuu'tion  operates  to  restrain  not  only  the  party  enjoined  but  other  courts 
on  the  ground  of  judicial  comity. — hlmjcls  v.  Liihcrk,  4  Cal.,  31, 

3.  Where  parties  can  obtain  ample  relief  in  the  court  whose  proceedings  they  wish 
to  restrain,  there  is  no  reason  for  seeking  an  injunction  in  another  tribunal,  possessing 
only  the  same  power. — Rickett  v.  Johnson,  7  Cal.,  July  T. ;  Revalk  v.  Kmemer,  ib. ; 
Chijman  v.  lIMard,  ib.,  Oct.  T. ;  Ulif/elder  v.  Levi/,  8  Cal.,  April  T  ;  Pliehm  v.  Smith, 
7  Cal.,  Oct.  T.  ;  Bennett  v.LeRoi/,  5  Abbott,  55  ;    (irant  v.  Quick;  5  Sandf.,  612. 

4.  An  injunction  is  a  mere  remedial  process  and  where  the  party  obtaining  it  has 
also  obtained  a  judgment  ujion  his  cause,  the  court  will  not  revise  the  propriety  of 
granting  the  writ. — Hicks  v.  Lkivis,  4  Cal.,  67. 

5.  An  order  of  injunction  whereby  the  bringing  of  an  action  is  restrained,  will  be  re- 
versed notwithstanding  an  injunction  bond  has  been  given. — King  v.  Half,  5  Cal.,  82. 

6.  There  is  no  prohibition  to  this  grant  of  authority  in  the  county  judge,  by  the 
constitution,  and  the  implication  is  decidedly  otiierwise. —  Th<nnpson\.  Williams,  6  Cal., 
88  ;   Crandell  v.   Wmds,  ib.,  449. 

7.  An  appeal  does  not  lie  from  an  order  refusing  to  grant  an  injunction. — Richards 
\.  McMillan,  6  Cn\.,  i22.      •'<-^^<"-c<v        Sh-TZX^    f^f^l,kf^^<,      /^  ^. 

8.  An  injunction  will  not  lie  to  restrain  the  collection  of  a  judgment  against  plain- 
tiff, because  the  judgment  was  for  purchase  money  of  land  under  covenant  of  title, 
while  in  fact  tlie  grantor  had  no  title,  as  long  as  the  i)urcluiser  remains  in  possession. — 

'     Jackson  V.  Norton,  6  Cal.,  187. 

9.  An  appeal  does  not  lie  from  an  order  refusing  to  dissolve  an  injunction. — ^fllrtin 
V.  Tracers,  7  Cal.,  Jan.  T. 

10.  An  appeal  will  not  authorize  per  se  a  stay  of  injunction. — Merced  Mining  Co.  v. 
Fremont,  ib. 

11.  A  preliminary  injunction  cannot  be  sustained  where  the  equities  of  the  com- 
plaint are  denied  by  the  answer. —  Crandell  v  Woods,  (>  Ciil.,  449;  IJlatchford  v.  ^ar 
York  and  Xeic  Haven  R.  R.  Co.,  5  Abbott,  276. 

12.  The  destruction  of  water  courses  are  such  grievances  as  call  for  tlie  eipiitable 
remedy  by  injunction. — Corning  v.  Troy  Factory,  6  How.  Pr.,  89. 


§112  INJUNCTION.  89 

13.  An  injunction  cannot  issue  in  an  action  for  a  breacli  of  covenant  or  agreement, 
restraining  the  defendant  from  carrying  on  a  certain  trade  or  profession  within  a  certain 
time,  in  a  certain  place,  where  a  certain  sum  as  a  penalty  is  named  in  the  agreement, 
whether  the  defendant  is  solvent  or  insolvent. —  Mncent  v.  J\in(j,  13  ib.,  234. 

14.  An  injunction  to  restrain  an  apprehended  trespass,  is  never  allowed,  except  un- 
der very  special  circumstances. — ^f<ll/cl•  of  Xcw  Yoi-k  v.  Conover,  5  Abbott,  171. 

112.     An  injunction  maj  be  granted  in  the  following  cases : 

Isfc.  When  it  shall  appear  bj  the  complaint  that  the  plaintiff  is  en- 
titled to  the  relief  demanded,  and  such  relief,  or  any  part  thereof,  con- 
sists in  restraining  the  commission  or  continuance  of  the  act  complained 
of,  either  for  a  limited  period  or  perpetually. 

2d.  When  it  shall  appear  by  the  complaint  or  affidavit  that  the  com- 
mission or  continuance  of  some  act  during  the  litigation  would  produce 
great  or  irreparable  [injury]  to  the  plaintiff. 

3d.  When  it  shall  appear  during  the  litigation  that  the  defendant  is 
doing,  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  to  be 
done,  some  act  in  \aolation  of  the  plaintiff's  rights,  respecting  the  sub- 
ject of  the  action  and  tending  to  render  the  judgment  ineffectual. 

1.  The  allegation,  irreparable  injury,  of  itself,  unless  the  facts  are  shown  to  the 
court,  is  insufficient. — DeWitty.  Hays,  2  Cal.,  463. 

2.  For  an  injunction  to  restrain  the  removal  of  minerals,  it  is  sufficient. — Merced 
Mining  Co.  v.  Fremont,  7  Cal.,  April  T. 

3.  The  writ  of  injunction  can  only  be  issued  where  the  case  is  one  of  equit}'  juris- 
diction.— Mintnrn  v.  Says,  2  Cal.,  590. 

4.  A  perpetual  injunction  to  restrain  defendants  from  raising  their  dam  higher  than 
the  point  designated  was  allowed. — Ramsay  v.  Chandler,  3  Cal.,  90. 

5.  The  nuisance  complained  of  must  cause  irremediable  mischief,  or  such  an  injury 
as  cannot  be  compensated  by  damages. —  Grefjory  \.  Hay,  3  Cal.,  332 ;  Middleton  v- 
Franklin,  ib.,  238  ;  Waldron  v.  Marsh,  5  Cal.,  119  ;  Marshall  v.  Peters,  12  How.  Pr.,  218. 

6.  An  injunction  will  sometimes  be  allowed  to  prevent  a  multiplicity  of  suits. — 
Woodruff  \.  Fisher,  17  Barb.,  224. 

7.  An  injunction  under  the  second  division  can  only  be  for  acts  done  or  threatened, 
pending  the  litigation. — Malcolm  v.  Miller,  6  How.  Pr.,  456  ;  Sebring  v.  Lant,  9  ib.,  347. 

8.  The  effect  of  the  temporary  injunction  under  the  third  division  is  not  to  restrain 
any  removal  or  disposition  whatever  of  defendant's  property,  but  only  such  as  would 
defraud  the  creditors. — Brewster  v.  Hodges,  1  Duer,  609. 

9.  An  injunction  to  restrain  the  collection  of  a  tax  illegally  laid,  if  there  is  a  remed  v 
at  law,  will  not  be  granted. — Robinson  v.  Gaar,  6  Cal.,  273  ;  Wilson  v.  Mayor  of  New 
York-,  1  Abbott,  4  ;  Chemical  Bank  v.  same,  ib.,  79  ;  iV.  Y.  Life  Ins.  Co.  v.  same,  ib.,  250. 

10.  "Where  a  tax  deed  is  made/)rt«(a  facie  evidence,  then  it  would  be  a  cloud  upon 
the  title,  and  an  injunction  would  lie  to  restrain  the  selling  by  the  officer. — Palmer  v. 
Boiling,  7  Cal.,  Oct.  T. 

G 


90  INJUNCTION.  §113 

11.  An  injunction  may  be  granted  to  restrain  proceedings  on  judgment,  and  in 
many  cases  this  course  is  preferuhlc  to  granting  an  order  in  the  suit  sought  to  be  stayed. 
Watt  V.  Rof/ers,  2  Abbott,  261. 

12.  The  courts  of  this  state  have  no  power  to  restrain  by  injunction  the  acts  of  offi- 
cers of  the  state  who  are  proceeding  under  authority  of  a  law  of  the  state.  That  such 
law  is  unconstitutional  forms  no  ground  for  grunting  such  injunction. — Thompson  v. 
Commissioners  of  the  Canal  Fund,  2  Abbott,  248. 

13.  An  injunction  should  not  be  granted  at  the  commencement  of  a  suit  brought^to 
enjoin  the  defendant  from  the  use  of  plaintiff" 's  trade  mark,  and  recover  damages,  un- 
less the  legal  right  of  plaintiff  and  the  violation  of  it  by  defendants,  are  very  clear. 
Meirimac  Manufacturing  Co.  v.  Garner,  2  Abbott,  318. 

14.  An  injunction  can  only  issue  upon  a  complaint  filed.  Affidavits  without  a  com- 
plaint are  no  proper  basis  for  an  order. — People  v.  Judges  of  N.  Y.  Common  Pleas,  3  ib., 
181. 

15.  To  entitle  plaintiff  to  an  injunction,  his  complaint  must  show  that  he  will  be  en- 
titled to  final  relief. — Crocker  v.  Baker,  3  ib.,  182. 

16.  An  injunction  will  not  be  granted  when  the  plaintiff  has  another  remedy  of  which 
he  can  avail  himself  without  restraining  the  defendant. — Bedell  v.  McClellan,  11  How. 
Pr.,  172. 

17.  An  injunction  will  be  granted  to  prevent  and  restrain  a  nuisance  at  the  instance 
of  any  private  individual  who  sustains  a  special  injury  from  it. — Pennimany.  New  York 
Balance  Co.,  13  ib.,  40. 

113.  The  injunction  may  be  granted  at' the  time  of  issuing  the 
summons  upon  the  complaint^;  and  at  any  time  afterwards,  before 
judgment,  upon  affidavits.  The  complaint  in  the  one  case,  and  the 
affidavits  in  the  other,  shall  show  satisfactorily  that  sufficient  grounds 
exist  therefor.  No  injunction  shall  be  granted  on  the  complaint,  unless 
it  be  verified  by  the  oath  of  the  plaintiff,  or  some  one  in  his  behalf, 
that  he,  the  person  making  the  oath,  has  read  the  complaint,  or  heard 
the  complaint  read,  and  knows  the  contents  thereof,  and  the  same  is 
true  of  his  own  knowledge,  except  the  matters  therein  stated  on  infor- 
mation and  belief,  and  that  as  to  those  matters  he  believes  it  to  be  true. 
When  granted  on  the  complaint,  a  copy  of  the  complaint  and  verifica- 
tion attached  shall  be  served  with  the  Injunction :  when  granted  upon 
affidavit,  a  copy  of  the  affidavit  shall  be  served  with  the  injunction. 

For  verification  sec  notes  to  Section  .55. 

1.  The  order  of  injunction  must  be  served  by  copy.  Verbal  notice  is  insnfficient, 
unless  the  party  be  in  court  and  hear  the  order  pronounced.  Elliott  v.  Osborne,  1  Cal., 
396. 

2.  The  injunction  may  be  granted  on  a  verified  complaint,  if  the  facts  are  alleged 
positively  and  not  on  information  and  belief  alone.  Crocker  v.  Baker,  3  Abbott,  182  ; 
Levi/  V.  Lei/,  6  ib.,  89. 


§116  UNDERTAKING   ON    INJUNCTION.  91 

3.  An  injunction  can  only  be  granted  or  sustained  upon  affidavit.  Eitliev  the  com- 
plaint must  be  verified,  or  upon  complaint  with  an  affidavit  filed. — Smith  v.  Reno,  6 
How.  Pr.,  124;  Minor  \.  Terry,  ib.,  208. 

4.  The  original  injunction  order  must  be  shown  to  a  party.  Service  of  a  copy  only 
with  a  notice  that  it  is  a  copy  of  the  original,  is  not  sufficient. —  Watson  v.  Fuller,  9  ib., 
425, 

114.  An  injunction  shall  not  be  allowed  after  the  defendant  has 
answered,  unless  upon  notice,  or  upon  an  order  to  show  cause  ;  but  in 
such  case  the  defendant  maj  be  restrained  until  the  decision  of  the 
court  or  judge,  granting  or  refusing  the  injunction. 

115.  On  granting  an  injunction,  the  court  or  judge  shall  require, 
except  where  the  people  of  the  state  are  a  party  plaintiff,  a  written 
undertaking,  on  the  part  of  the  plaintiff,  with  sufficient  sureties, 
to  the  effect  that  the  plaintiff  will  pay  to  the  party  enjoined  such  dam- 
ages, not  exceeding  an  amount  to  be  specified,  as  such  party  may 
sustain  by  reason  of  the  injunction,  if  the  court  finally  decide  that  the 
plaintiff  was  not  entitled  thereto. 

See  Sec.  650. 

1.  An  injunction  order  is  inoperative  unless  the  undertaking  be  given. — Elliott  v. 
Osborne,  1  Cal.,  396. 

2.  The  court  may  order  a  reference  to  ascertain  the  damages  sustained  by  an  in- 
junction issued  without  cause. — Russell  v.  Elliott,  2  Cal.,  245 ;  Sullivan  v.  Judah,  4 
Paige,  444. 

3.  A  party  filing  an  undertaking  to  obtain  an  injunction,  is  deemed  to  have  waived 
the  right  to  insist  on  a  trial  by  jury  ;  and  consented  that  the  damages  may  be  ascertain- 
ed in  the  mode  prescribed  by  the  statute  ;  and  an  order  of  reference  is  no  violation  of  the 
constitutional  right  to  trial  by  jury. —  Russell  v.  Elliott,  2  Cal.,  245. 

4.  For  suits  on  undertakings,  see  il/or;7n«  v.  Thrift,  2  Cal.,  562;  Gelston  v.  White-, 
sides,  3  Cal.,  309  ;   Cunningham  v.  Breed,  4  Cal.,  384. 

5.  In  suit  on  undertaking,  counsel  fees  in  having  injunction  dissolved,  allowed. — Ah 
Jhaie  v.  Quart  Wan,  3  Cal.,  216  :  Coates  v.  Coates,  1  Duer,  664. 

6.  An  action  on  the  case  will  not  lie  for  improperly  suing  out  an  injunction,  unless 
it  is  charged  in  the  declaration  as  abu.se,  or  without  probable  cause.  The  remedy  is  on 
the  appeal  bond. — Robinson  v.  Kellum,  6  Cal.,  399. 

116.  If  the  court  or  judge  deem  it  proper  that  the  defendant,  or 
any  of  several  defendants,  should  be  heard  before  granting  the  injunc- 
tion, an  order  may  be  made  requiring  cause  to  be  shown,  at  a  specified 
time  and  place,  why  the  injunction  should  not  be  granted ;  and  the 
defendant  may,  in  the  mean  time,  be  restrained. 


92  INJUNCTION.  §117 

117.  An  injunction  to  suspend  the  general  and  ordinary  business 
of  a  corporation,  shall  not  be  granted  except  by  the  court ;  nor  shall 
it  be  granted  without  due  notice  of  the  application  therefor  to  the 
proper  officers  of  the  corporation,  except  -when  the  people  of  this  state 
are  a  party  to  the  proceeduig. 

118.  If  an  injunction  be  granted  without  notice,  the  defendant,  at 
any  time  before  the  trial,  may  apply  upon  reasonable  notice,  to  the 
judge  who  granted  the  injunction,  or  to  the  court  in  which  the  action 
is  brought,  to  dissolve  or  modify  the  same.  The  application  may  be 
made  upon  the  complaint  and  the  affidavit  on  which  the  injunction  was 
granted,  or  upon  affidavit  on  the  part  of  the  defendant,  with  or  with- 
out the  answer.  If  the  application  be  made  upon  affidavits  on  the  part 
of  the  defendant,  but  not  otherwise,  the  plaintiff  may  oppose  the  same 
by  affidavits,  or  other  evidence  in  addition  to  those  on  which  the  in- 
junction was  granted. 

1.  When  an  injunction  is  granted  on  a  verified  complaint,  and  defendant  moves  on 
a  verified  answer  to  dissolve  the  injunction,  the  plaintiti"  is  entitled,  on  the  motion,  to 
read  additional  aiSdavits  in  support  of  the  complaint,  if  the  defendant  by  his  answer 
sets  up  new  matter  in  avoidance. — Jarjucs  v.  Areson,  4  Abbott,  282  ;  Powell  v.  ClarJc,  5 
ib.,  70. 

2.  A  motion  to  vacate  an  injunction  once  denied,  cannot  be  renewed  unless  leave 
be  reserved  or  some  new  ground  in  vacating  arise. — Hoffman  v.  Livimjston,  1  John.  Ch. 
R.,  211. 

119.  If  upon  such  application  it  satisfactorily  appear  that  there  is 
not  sufficient  ground  for  the  injunction,  it  shall  be  dissolved  ;  or  if  it 
satisfactorily  appear  that  the  extent  of  the  injunction  is  too  great,  it 
shall  be  modified. 

1.  No  appeal  is  allowed  from  an  order  refusing  to  dissolve  an  injunction. — Martin 
V.  Travers,  7  Cal.,  Jan.  T. 

2.  The  court  may  modify  the  injunction  on  a  motion  ex  parte,  if  it  were  granted  cj 
paiie. — Fremont  v.  Merced  Mining  Co.,  8  Cal.,  Jan.  T. 


/ 


§120  ATTACHMENT.  9-3 

CHAPTER  IV. 

ATTACHMENT.       (ci) 

120.  [1853,  1858.]  The  plaintiflf,  at  the  time  of  issumg  the  sum- 
mons, or  any  time  afterwards,  may  have  the  property  of  the  defendant 
attached,  as  security  for  the  satisfaction  of  any  judgment  that  may  be 
recovered,  unless  the  defendant  give  security  to  pay  such  judgment, 
in  the  following  cases  : 

1st.    Where  the  debtor  is  twi  a  resident  of  this  state  ; 

2d.    When  the  debtor  has  absconded  or  absented  himself  from  his 
usual  place  of  abode,  or  is  about  to  abscond  or  absent  himself,  so  that     ^^  3^^ 
the  ordinary  process  of  law  cannot  be  served  upon  him  ; 

Zd.  When  the  debtor  conceals  himself,  so  that  the  ordinary  process 
of  law  cannot  be  served  upon  him  ; 

4:th.  Where  the  debtor  has  removed,  or  is  about  to  remove,  any  of  his 
property  or  effects  out  of  the  state,  to  the  injury  of  his  creditors,  orivith 
the  intent  to  hinder,  delay,  or  defraud  them  ; 

K>th.  Where  the  debtor  has  fraudulently  conveyed,  assigned,  or  other- 
ivise  diposed  of,  oris  about  to  fraudulently  convey,  assign,  or  otherwise 
dispose  of  his  property  or  effects  ivith  the  intent  to  hinder,  delay  or  de- 
fraud his  creditors  ; 

6th.  Where  the  debtor  has  fraudulently  coricealed,  or  is  about  to 
fraudulently  conceal  his  property  or  effects,  ivith  the  intent  to  hinder, 
delay,  or  defraud  his  creditors  ; 

1th.  Where  the  debtor  fraudulently  contracted  the  debt,  or  incurred 
the  obligation  respecting  which  the  suit  is  brougJit. 

1.  The  remedy  by  attachment  is  not  a  distinct  proceeding  in  the  nature  of  an  action 
in  rem,  but  is  auxiliary  to  the  action  at  law. — Low  v.  Adams,  6  Cal.,  277. 

2.  The  assignment  of  a  note  as  collateral  security,  is  not  a  mortgage,  but  a  mere 
pledge  of  the  note,  but  its  holder  cannot  attach ;  the  word  "  mortgage,"  upon  personal 
property  includes  pledge. — Paijiie  v.  Bennlej/,  7  Cal.,  Oct,  T. 

3.  If  the  writ  of  attachment  issues  before  the  summons,  the  former  is  a  nullity  — 
Low  V.  Hfinri/,  8  Cal.,  April  T. 

4.  Where  the  defendant  left  New  York  State  and  went  to  Wisconsin  to  establish 


(a)     The  amendments  go  into  effect  after  the  1st  July,  18.58,  and  refer  to  contracts 
made  after  that  date. 


y 


94 


AFFIDAVIT    OX    ATTACHMENT. 


§121 


yi/.3^/ 


business,  but  intended,  even  if  successful,  to  leave  it  in  charge  of  a  clerk  and  return  ; 
held,  that  he  was  not  a  non-resident. — Hurlbut  v.  Sedey,  2  Abbott,  138  ;  1 1  How.  Pr.,  507. 
5.  Where  a  party  has  been  attached  as  a  non-resident,  he  may  move  to  discharge 
the  attachment  on  the  ground  of  his  being  a  resident,  and  the  court  will  grant  a  refer- 
ence to  ascertain  the  fact  without  an  undertaking  from  defendant. — Killian  v.  Wu&liinij- 
toii,  2  Code  K.,  78. 

121.  [1853,  1858.]  The  clerk  of  the  court  shall  issue  the  writ  of 
/  if^  C^  attachment  upon  receiving  an  aflfidavit  by  or  on  behalf  of  the  plaintiflf, 
which  shall  be  filed,  showing  : 

1st.  That  the  defendant  is  indebted  to  the  plaintiflf  z'w  a  eertain  sum 
(specifying  the  amount  of  such  indebtedness,)  over  and  above  all  legal 
set-oflTs  or  counter  claims,  upon  a  contract  express  or  implied,  for  the 
direct  payment  of  money,  and  that  such  contract  was  made  or  is  pay- 
able in  this  state,  and  that  the  payment  of  the  same  has  not  been  se- 
cured by  any  mortcatge  on  real  or  personal  property ; 

2d.  That  the  d^melti»L>has  good  reason  to  believe,  and  does  believe, 
mat  one  or  more  of  the  causes  set  forth  in  the  several  sub-divisions  of 
the  next  preceding  section  actually  exists  at  the  time  of  making  the  affi- 
davit, reciting  the  facts  upon  ivhich  such  belief  is  founded. 

1.  Attachment  only  given  in  cases  of  indebtedness  ."xrising  out  of  contract. —  Gris- 
wdcl  V.  Sharp,  2  Cal.,  17. 

2.  The  contract  must  be  ma<le  in  this  state,  or  must  contain  a  stipulation  that  the 
money  is  to  be  paid  here,  to  authorize  an  attachment. — Dulton  v.  Shelton,  3  Cal.,  206. 

3.  The  affidavit  must  state  whether  the  contract  is  express  or  implied,  and  not  state 
it  in  the  alternative. — Ilaivley  v.  Dehnas,  4  Cal.,  19.5. 

4.  The  sureties  are  estopped  from  controverting  that  the  defendant  was  not  a  non- 
resident.— IJaf/;/(irt  v.  Morr/aii,  1  Scld.,  422. 

5.  What  constitutes  a  non-resident  within  the  meaning  of  the  law  relating  to  at- 
tachments.—//ur/i«f  v.  Seelei/,  2  Abbott,  138;  11  How.  Tr.,  507. 

6.  The  affidavit  is  insufficient  if  neither  plaintiff'  nor  defendant  is  individually 
named  therein. — Burgess  v.  Stitt,  12  ib.,  401. 


^^- 


122.  Before  issuing  the  writ,  the  clerk  shall  require  a  written  im- 
dertaking  on  the  part  of  the  plaintiff,  in  a  sum  not  less  than  two  hun- 
dred dollars,  nor  exceeding  the  amount  claimed  by  the  plaintiff,  with 
sufficient  sureties  to  the  eflibct,  that  if  the  defendant  recover  judgment, 
or  if  the  attachment  should  be  dismissed,  the  plaintiflf  will  pay  all  costs 
^  ^  ■  that  may  be  awarded  to  the  defendant,  and  all  damage  which  he  may 
sustain  by  reason  of  the  attachment,  not  exceeding. the  sum  specified 
in  the  undertaking. 


See  Sees.  140,  650. 


§124  ATTACHMENT.  95 

1.  For  suit  on  attachment  bond  see  Heath  v.  Lent,  1  Cal.,  410;  Benedict  v.  Bray, 
2  Cal.,  251,  and  Ah  Thaie  v.  Quan  Wan,  3  Cal.,  216,  overruling  part  oi  Heath  v.  Lent. 

2.  The  undertaking  must  precede  the  writ  and  accompany  the  affidavit. — Bene- 
dict V.  Bniii,  2  Cal.,2.'31. 

3.  The  undertaking  is  not  required  to  he  executed  in  form  to  the  defendant ;  the  law 
only  specifies  the  conditions  it  shall  contain. — Taajf'e  v.  Roaoithall ,  7  Cal.,  April  T. 

4.  An  attachment  issued  without  an  undertaking  of  a  plaintiflf  and  a  surety  would 
be  irregular  and  perhaps  void. — Bennett  v.  Brown,  1  Code  R.,  N.  S.,  267. 

\    '      %    " 

V 

123.  The  writ  shall  be  directed  to  the  sheriff  of  any  county  in 
which  property  of  such  defendant  may  be,  and  require  him  to  attach 
and  safely  keep  all  the  property  of  such  defendant  within  his  county, 
not  exempt  from  execution,  or  so  much  thereof  as  may  be  sufficient  to 
satisfy  the  plaintiff's  demand,  the  amount  of  which  shall  be  stated  in 
conformity  with  the  complaint,  unless  the  defendant  give  him  security 

by  the  undertaking  of  at  least  two   sufficient  sureties,  in  an  amoui^t  / 

sufficient  to  satisfy  such  demand,  besides  costs  ;  in  which  case  to  take     l^ 
such  undertaking.     Several  writs  may  be  is^d  atythe  same  time,  to       —^  ^•- 
the  sheriffs  of  different  counties.    '  /,'-     / 

See  See.  650.  "^  ^    O^^f^.    ^X?      ^/X3^ 

1.  For  suit  against  a  sheriff  for  not  attaching,  see  Stronc)  y.  Patterson,  6  Cal.,  156. 

2.  The  bond  only  operates  to  release  the  property  from  the  custody  of  the  sheriff, 
pending  the  suit,  and  is  not  an  actual  substitution  of  security. — Low  v.  Adams,  6  Cal., 
277. 

3.  Funds  in  hands  of  a  receiver  appointed  by  a  competent  court,  arc  not  liable  to 
attachment. — Adams  v.  Haskell,  6  Cal.,  113  ;   Yuba  County  v.  Adams,  7  Cal.,  Jan.  T. 

4.  Attaching  and  judgment  creditors  prior  to  the  decree  of  dissolution  of  partner-';;^ 
ship  effects  are  entitled  to  the  fruits  of  their  judgments,  and  must  be  paid. — Adams  v.-^'' ' 
Haskell,  7  Cal.,  July  T. ;  8  ib.,  Jan.  T. 

5.  Copartnership  property  cannot  be  seized  on  an  attachment  against  one  abscond- 
ing partner  for  a  partnership  debt. — Stoutenburgh  v.  Vandenbunjh,  7  How.  Pr.,  229  ; 
Sears  v.  Gearn,  ib.,  383. 

6.  When  a  sheriff  to  whom  an  attachment  was  issued  neglected  to  levy  on  sufficient 
property  to  satisfy  the  debt,  he  was  held  liable  in  an  action  against  him  for  the  defi- 
ciency, it  appearing  that  the  defendant  in  the  attachment  had  sufficient  property  to  sat- 
isfy the  demand,  and  that  the  sheriff  knew  it  at  the  time  of  the  levy. — Ransom  v.  Hal- 
cott,  9  How.  Pr.,  119. 

124.  The  rights  or  shares  which  the  defendant  may  have  in  the 
stock  of  any  corporation  or  company,  together  with  the  interest  and 
profits  thereon,  and  all  debts  due  such  defendant,  and  all  other  prop- 


96  ATTACHMENT.  §125 

ertj  in  this  state  of  such  defendant  not  exempt  from  execution,  may 
be  attached,  and  if  judgment  be  recovered,  be  sold  to  satisfy  the  judg- 
ment and  execution. 

125.  The  sheriff  to  whom  the  writ  is  directed  and  dehvered  shall 
execute  the  same  without  delay,  and  if  the  undertaking  mentioned  in 
section  one  hundred  and  twenty-three  be  not  given,  as  follows : 

1st.  Real  property  shall  be  attached  by  leaving  a  copy  of  the  writ 
with  the  occupant  thereof;  or  if  there  be  no  occupant,  by  posting  a 
copy  in  a  conspicuous  place  thereon,  and  filing  a  copy,  together  with  a 
description  of  the  property  attached,  with  the  recorder  of  the  county. 

2d.  Personal  property,  capable  of  manual  deUvery,  shall  be  attached 
by  taking  it  into  custody. 

3d.  Stock  or  shares,  or  interest  in  stock  or  shares,  of  any  corpora- 
tion or  company,  shall  be  attached  by  leaving  with  the  president,  or 
other  head  of  the  same,  or  the  secretary,  cashier  or  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  the  stock  or  interest  of 
the  defendant  is  attached  in  pursuance  of  such  writ. 

4th.  Debts  and  credits,  and  other  personal  property,  not  capable 
of  manual  delivery,  shall  be  attached  by  leaving  with  the  person  owing 
such  debts,  or  ha\ang  in  his  possession,  or  under  his  control,  such  cred- 
its, or  other  personal  property,  a  copy  of  the  Avrit,  and  a  notice  that 
the  debts  owing  by  him  to  the  defendant,  or  the  credits  and  other  per- 
sonal property  in  his  possession  or  under  his  control,  belonging  to  the 
defendant,  are  attached  in  pureuance  of  such  writ. 

1.  1st.  Real  property  may  be  attached  without  possession;  personal  property  can- 
not be. — Learned  v.  Vandenhunjh,  7  How.  Pr.,  379. 

2.  2(1.  Letters  and  correspondence  cannot  be  attached. — Ilergman  v.  Dettlebach,  11 
ib.,  47. 

3.  3d.  See  notes  to  Section  29,  as  to  service. 

4.  Bonds  made  by  a  railroad  company,  and  placed  in  the  hands  of  their  agents  to 
be  sold,  are  not,  either  in  the  hands  of  the  company  or  of  the  agents,  the  property  of 
the  company,  in  •  such  sense  that  an  attachment  issued  against  the  company  can  be 
lericd  upon  them. — Coddinr/ton  v.  Gilbert,  2  Abbott,  242. 

126.  Upon  receiving  information  in  writing  from  the  plaintiff,  or 
his  attorney,  that  any  person  has  in  his  possession,  or  under  his  con- 
trol, any  credits  or  other  personal  property  belonging  to  the  defendant, 
or  is  owing  any  debt  to  the  defendant,  the  sheriff  shall  serve  upon  such 
person  a  copy  of  the  writ,  and  a  notice  that  such  credits,  or  other 


§128  GARNISHMENT.  97 

property  or  debts,  as  the  case  may  be,  are  attached  in  pursuance  of 
such  writ. 

127.  All  persons  having  in  their  possession,  or  under  their  control, 
any  credits  or  other  personal  property  belonging  to  the  defendant,  or 
owing  any  debts  to  the  defendant  at  the  time  of  service  upon  them  of 
a  copy  of  the  writ  and  notice,  as  provided  in  the  last  two  sections, 
shall  be,  unless  such  property  be  delivered  up  or  transferred,  or  such 
debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff,  for  the  amount  of 
such  credits,  property  or  debts,  until  the  attachment  be  discharged,  or 
any  judgment  recovered  by  him  be  satisfied.  ^ 

1 .     In  proceedings  against  a  garnishee,  it  is  the  duty  of  the  court  simply  to  render    o, 
judgment  against  the  garnishee  for  the  amount  due  by  him  to  the  judgment  debtor.    To     j 
order  the  money  paid  over  is  error. — Smith  v.  Brown,  5  Cal.,  118  ;  Bnuniiuuj'nn  v.  Bou- 
cher, 6  Cal.,  16. 

128.  [1855.]  Any  person  owing  debts  to  the  defendant,  or  hav- 
ing in  his  possession  or  under  his  control,  any  credits  or  other  personal    '"- 
property  belonging  to  the  defendant,  may  be  required  to  attend  before  -v^ 
the  court  or  judge,  or  a  referee  appointed  by  the  court  or  judge,  and   ^ 
be  examined  on  oath  respecting  the  same.     The  defendant  may  also  ^ 
be  required  to  attend  for  the  purpose  of  giving  information  respecting 
his  property,  and  may  be  exammed  on  oath.     The  court  or  judge  may, 
after  such  examination,  order  personal  property  capable  of  manual  de- 
livery to  be  deUvered  to  the  sheriff  on  such  terms  as  may  be  just,  hav- 
ing reference  to  any  liens  thereon,  or  claims  against  the  same,  and  a 
memorandum  to  be  given  of  all  other  personal  property,  containing  the 
amount  and  description  thereof. 

1.  A  garnishee  can  only  be  required  to  answer  as  to  his  liability  to  defendant  at  the 
time  of  the  service  of  garnishment. — Johnson  v.  Carry,  2  Cal.,  33  ;  Norris  v.  Burgoyne, 
4  Cal.,  409. 

2.  Where  a  garnishee  answers  under  oath  that  he  was  released  by  the  plaintiff,  who 
abandoned  the  examination,  he  should  be  discharged  unless  such  answer  under  oath,  be 
denied  by  plaintiff.  Where  a  party  is  garnisheed  to  answer  on  a  certain  day,  and  ap- 
pears, and  the  summoning  party  declines,  or  is  not  prepared  to  take  his  answer,  and  a 
term  elapses,  the  party  is  discharged  from  liability  to  answer. — Ofjden  v.  Mills,  3  Cal., 
253. 

3.  Unless  the  answer  of  the  garnishee  discloses  liens  having  priority  of  claim  upon 
the  funds  in  his  hands,  an  order  for  a  bill  of  interpleader  will  not  be  granted. — Cahoon 
V.  Levy,  4  Cal.,  243. 

4.  Upon  suit  on  a  garnishment,  the  garnishee  is  entitled  to  a  trial  by  jury. — Cahoon 
V.  Levy,  5  Cal.,  294. 


m 


98  ATTACHMENT.  §129 

5.  To  subserve  the  purposes  of  justice,  courts  should  allow  a  garnishee  to'amend  his 
answer  whenever  it  appears  that  he  has  committed  a  mistake  or  fallen  into  an  error 
which  could  not  reasonablj-  have  been  avoided,  but  not  otherwise. — Smith  v.  Brown,  5 
Cal.,  118. 

6.  The  provisions  of  this  section  are  intended  to  secure  the  property  after  the  lien 
has  attacljcd.  If,  however,  this  object  is  already  secured,  the  court  from  whicli  the  at- 
tachment issues  will  not  proceed  any  further. — Adams  v.  Haskell,  8  Cal.,  Jan.  T. 

129.  The  sheriff  shall  make  a  full  inventory  of  the  property  at- 
tached, and  return  the  same  with  the  writ.  To  enable  him  to  make 
such  return  as  to  debts  and  credits  attached,  he  shall  request,  at  the 
time  of  service,  the  party  owing  the  debt,  or  having  the  credit,  to  give 
him  a  memorandum,  stating  the  amount  and  description  of  each ;  and 
if  such  memorandum  be  refused,  he  shall  return  the  fact  of  refusal 
with  the  writ.  The  party  refusing  to  give  the  memorandum  may  be 
required  to  pay  the  costs  of  any  proceedings  taken  for  the  purpose  of 
obtaining  information  respecting  the  amount  and  description  of  such 
debt  or  credit. 

130.  If  any  of  the  property  attached  be  perishable,  the  sheriff 
shall  sell  the  same  in  the  manner  in  which  such  property  is  sold  on 
execution.  The  proceeds,  and  other  property  attached  by  him,  shall 
be  retained  by  him  to  answer  any  judgment  that  may  be  recovered  in 
the  action,  unless  sooner  subjected  to  execution  upon  another  judgment 
recovered  previous  to  the  issuing  of  the  attachment.  Debts  and  cred- 
its attached  may  be  collected  by  him,  if  the  same  can  be  done  without 
suit.  The  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the 
amount  paid. 

See  Sec.  654. 

1.  No  order  of  court  is  required  to  authorize  this  sale  by  the  officer. — Low  v.  Henri/, 
8  Cal.,  April  T. 

131.  If  any  personal  property  attached  be  claimed  by  a  third  per- 
son, as  his  property,  the  sheriff  may  summon  a  jury  of  six  men  to  try 
the  validity  of  such  claim  ;  and  such  proceedings  shall  be  had  thereon, 
with  the  like  effect,  as  in  a  case  of  a  claim  after  levy  upon  execution. 

See  Sec  218. 

1.  In  a  suit  against  the  sheriff  for  not  levying  the  attachment,  if  the  sheriff  prove  a 
trial  by  jury,  and  verdict  for  claimant,  the  jjlaintlff  must  show  that  he  tendered  the  bond 
of  indemnity  to  the  sheriff,  required  by  law. — Strong  v.  Patterson,  6  Cal.,  15C. 


§135  ATTACHMENT.  99 

132.  If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall 
satisfy  the  same  out  of  the  property  attached  by  him  which  has  not 
been  delivered  to  the  defendant,  or  a  claimant  as  hereinbefore  provided, 
or  subjected  to  execution  on  another  judgment  recovered  previous  to 
the  issuing  of  the  attachment,  if  it  be  sufficient  for  that  purpose  : 

1st.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable 
property  sold  by  him,  or  [of]  any  debts  or  credits  collected  by  liim,  or 
so  much  as  shall  be  necessary  to  satisfy  the  judgment : 

2d.  If  any  balance  remain  due,  and  an  execution  shall  have  been 
issued  on  the  judgment,  he  shall  sell  under  the  execution  so  much  of 
the  property,  real  or  personal,  as  may  be  necessary  to  satisfy  the  bal- 
ance, if  enough  for  that  purpose  remain  in  his  hands.  Notices  of  the 
sales  shall  be  given,  and  the  sales  conducted  as  in  other  cases  of  sales 
on  execution. 

1.  Where  an  attachment  was  issued  by  the  court  against  property  of  the  debtor, 
and  tiie  sheriff  had  executed  the  same  and  was  ordered  to  make  the  amount  due  the 
creditor  out  of  the  goods,  chattels  and  property  of  the  debtor,  the  sheriff  could  not 
maintain  an  action  in  his  own  name  to  recover  a  sum  owing  to  the  attachment  debtor 
by  a  third  person,  for  goods  sold  and  delivered. — Sublette  v.  Melhado,  1  Cal.,  104. 

133.  If  after  selUng  all  the  property  attached  by  him  remaining  in 
his  hands,  and  applying  the  proceeds,  together  with  the  proceeds  of 
any  debts  or  credits  collected  by  him  deducting  his  fees,  to  the  pay- 
ment of  the  judgment,  any  balance  shall  remain  due,  the  sheriff  shall 
proceed  to  collect  such  balance  as  upon  an  execution  in  other  cases. 
"Whenever  the  judgment  shall  have  been  paid,  the  sheriff,  upon  reason- 
able demand,  shall  deliver  over  to  the  defendant  the  attached  property 
remaining  in  his  hands,  and  any  proceeds  of  the  property  attached  un- 
applied on  the  judgment. 

134.  If  the  execution  be  returned  unsatisfied  in  whole  or  in  part, 
the  plaintiff  may  prosecute  any  undertaking  given  pursuant  to  section 
one  hundred  and  twenty-three,  or  section  one  hundred  and  thirty- 
seven,  or  he  may  proceed  as  in  other  cases  upon  the  return  of  an 
execution. 

1 .  The  undertaking  only  operated  to  release  the  property  from  the  custody  of  the 
sheriff  pending  the  suit,  and  not  as  an  actual  substitution  of  security. — Low  v.  Adams, 
6  Cal.,  277. 

135.  If  the  defendant  recover  judgment  against  the  plaintiff,  any 


100  ATTACHMENT.  §136 

undertaking  received  in  the  action,  all  the  proceeds  of  sales  and  money 
collected  bj  the  sheriff,  and  all  the  property  attached,  remaining  in 
the  sherifiF's  hands,  shall  be  dehvered  to  the  defendant  or  his  agent : 
the  order  of  attachment  shall  be  discharged,  and  the  property  released 
therefrom. 

136.  [1854.]  Whenever  the  defendant  shall  have  appeared  in 
the  action,  he  may  apply,  upon  reasonable  notice  to  the  plaintiff,  to 
the  court  in  which  the  action  is  pending,  or  to  the  judge  thereof,  or  to 
a  county  judge,  for  an  order  to  discharge  the  same,  upon  the  execu- 
tion of  the  undertaking  mentioned  in  the  next  section  ;  and  if  the 
application  be  granted,  all  the  proceeds  of  sales  and  moneys  collected 
by  the  sheriff,  and  all  the  property  attached  remaining  in  his  hands, 
shall  be  released  from  the  attachment,  and  delivered  to  the  defendant 
upon  the  justification  of  the  sureties  on  the  undertaking,  if  required 
by  the  plaintiff. 

1.  In  a  complaint  upon  this  bond  it  must  be  alleged  that  the  property  attached  was 
released  upon  the  execution  of  the  bond. — Palmer  v.  Melvin,  6  Cal.,  651  ;  Williamson 
V.  Blattan,  8  Cal.,  April  T. 

137.  [1854.]  Upon  such  application  the  defendant  shall  deliver 
to  the  court  or  judge,  an  undertaking  executed  by  at  least  two  sure- 
ties, residents  and  freeholders  or  householders  in  the  county,  to  the 
effect  that  the  sureties  will,  on  demand,  pay  to  the  plaintiff  the  amount 
of  any  judgment  that  may  be  recovered  in  favor  of  the  plaintiff  in  the 
action,  not  exceeding  the  sum  specified  in  the  undertaking,  which  shall 
be  sufficient  to  satisfy  the  amount  claimed  by  the  plaintiff  in  his  com- 
plaint, and  the  costs.  The  sureties  may  be  required  to  justify,  on  such 
application  before  the  judge  or  court,  and  the  property  attached  shall 
not  be  released  from  the  attachment  without  their  justification,  if  the 
same  be  required. 

138.  [1858.]  In  all  cases  when  property  or  effects  shall  be  attach- 
/  S  u  C'  ^^•>  ^'*^  defendant,  or  any  creditor  of  the  defendant  interested^  may  file 

~  a  plea  in  the  nature  of  a  plea  in  abatement,  nnder  oath,  puttinr/  in  is- 
sue the  truth  of  the  facts  alleged  in  the  affidavit  on  zvhich  the  attachment 
was  sued  out. 

j       /)//,      139.     [1858.]    Upon  such  issue  the  plaintiff  shall  he  held  to  prove 
"/♦^r   tv^i^    e^l^-JL    v^<l'';  ^ 


§141  ATTACHMENT.  101 

that  the  facts  alleged  hy  him  in  said  affidavit,  as  the  grounds  of  the 
attachment,  existed  at  the  time  of  the  issuance  of  the  writ  of  attach- 
ment. 

140.  [1858.]  If  the  issue  be  found  against  the  plaintiff ,  the  at-     //^ 
tachment  shall  he  dismissed  at  the  cost  of  the  plaintiff ,  and  his  sureties 

shall  thereafter  be  liable  upon  the  bond  for  all  damages  sustained  by 
tlm  defendant,  in  consequence  of  the  issuing  of  the  attachment. 

An  opvr  improperly  refusing  an   attacliment  will  be  rcA-ersed,  even  after  final 
judgment. —  Grisicold  \.  Sharj),  2  Cal.,  17. 

2.  An  order  improperly  dissolving  an  attachment  \vill  be  reversed. — Reiss  v.  Brad;/, 
2  Cal.,  132. 

3.  An  objection  can  be  urged  on  appeal  against  the  order  of  the  district  court  refus- 
ing to  discharge  the  attachment,  although  final  judgment  was  had  against  defendants. 

Taaffex.  Rosenthdl,  7  Cal.,  April  T. 

4.  An  appeal  will  not  lie  from  an  order  refusing  to  discharge  an  attachment. — Ba- 
ker v.  Rosenthal,  7  Cal.,  April  T. 

5.  On  motion  to  vacate  an  attachment,  the  plaintiff's  affidavits  in  opposition  are  to 
be  received  only  for  the  purpose  of  explaining  or  contradicting  the  moving  affidavits, 
and  unless  the  attachment  can  be  sustained  on  the  original  affidavits,  it  should  be  dis- 
charged. He  should  not  be  allowed  to  supjily  a  deficiency  in  his  first  affidavits. —  TT7/so7i 
V.  Britton,  6  Abbott,  33. 

6.  This  principle  fully  discussed  in — New  York  aud  Erie  Bank  y.  Codd,  11  How. 
Pr.,  221. 

141.  The  sheriff  shall  return  the  writ  of  attachment  with  the  sum- 
mons, if  issued  at  the  same  time  ;  otherwise,  within  twenty  days  after 
its  receipt,  Avith  a  certificate  of  his  proceedings  endorsed  thereon,  or 
attached  thereto.  The  provisions  of  this  chapter  shall  not  apply  to 
any  suits  already  commenced,  but  so  far  as  such  suits  may  be  con- 
cerned, the  act  entitled  "An  Act  to  regulate  proceedings  ao-ainst 
debtors  by  attachment,"  passed  April  22d,  1850,  shall  be  deemed  ui 
full  force  and  effect. 

1.  The  sheriff's  return  is  conclusive  against  the  plaintiff,  and  his  action  must  be  for 
a  false  return. — Eyery  v.  Buchanan,  5  Cal.,  53. 

2.  This  return  cannot  be  amended  where  a  third  party  has  acquired  an  interest  ad- 
verse to  the  attachment. — Xeivhall  v.  Provost,  6  Cal.,  85. 

3.  It  is  the  duty  of  a  sheriff  to  return  process  to  the  proper  office,  and  if  sent  by 
mail  he  must  pay  the  postage  on  the  letter  containing  it. — Jenkins  \.  McGUl  4  How. 
Pr.,  205. 

4.  It  is  not  necessary,  and  in  many  cases  would  be  unjust,  to  drive  the  defendant  to 
an  action  for  a  false  return  for  redress. —  1  a»  Rensselaer  v.  Chadwick,  7  ib.,  297. 


102  DEPOSIT   IX    COURT.  §142 

CHAPTER  V. 

DEPOSIT   IN   COURT. 

142.  When  it  is  admitted,  by  the  pleading  or  examination  of  a 
party,  that  he  has  in  his  possession,  or  under  his  control,  any  money 
or  other  thing  capable  of  delivery,  which,  being  the  suTject  of  litiga- 
tion, is  held  by  him  as  trustee  for  another  party,  or  which  belongs,  or 
is  due,  to  another  party,  the  court  may  order  the  same,  upon  motion, 
to  be  deposited  in  court,  or  delivered  to  such  party,  upon  such  condi- 
tions as  may  be  just,  subject  to  the  further  direction  of  the  court. 

1 .  An  order  directing  the  defendant  to  pay  the  amount  admitted  due  by  the  answer 
is  an  appealable  order. — Merritt  v.  Thompson,  1  Abbott,  223. 

143.  [1854.J  A  receiver  may  be  appointed  by  the  court  in  which 
the  action  is  pending,  or  by  a  judge  thereof: 

1st.  Before  judgment,  provisionally,  on  the  application  of  either 
party,  when  he  establishes  &  prima  facie  right  to  the  property,  or  to 
an  interest  in  the  property  which  is  the  subject  of  the  action,  and 
which  is  in  possession  of  an  adverse  party,  and  the  property  or  its 
rents  and  profits  are  in  danger  of  being  lost  or  materially  injured  or 
impaired ; 

2d.  After  judgment,  to  dispose  of  the  property  according  to  the 
judgment,  or  to  preserve  it  during  the  pending  of  an  appeal ;    and 

3d.  In  such  other  cases  as  are  in  accordance  with  the  practice  of 
courts  of  equity  jurisdiction. 

1.  The  appointment  of  a  receiver  in  an  action  for  tiie  disolution  of  a  partnership, 
and  the  distribution  of  its  effects  in  chancery,  sustained. — Adams  v.  Haskell,  6  Cal., 
113  ;    Grosclien  v.  Page,  ib.,  138. 

2.  The  receiver  should  be  allowed  all  necessary  disbursements,  although  the  pro- 
ceedings were  void  ab  initio. — Achims  v.  Ilushll,  6  Cal.,  47.'3. 

3.  The  receiver  should  not  employ  counsel  who  arc  acting  for  one  of  the  parties  in 
the  original  suit. — lb.,  7  Cal.,  Oct.  T. 

4.  A  special  receiver  apjiointed  in  a  cause  to  take  charge  of  the  fund  in  dispute,  is 
an  officer  of  the  court,  and  entitled  to  the  instructions  of  the  court  as  to  his  duty  under 
an  order  in  the  cause  respecting  j)aymcnt  out  of  such  fund. — Curtis  v.  Lfaulft,  1  Ab- 
bott, 274. 

5.  An  order  to  show  cause  why  a  receiver  should  be  appointed  before  the  action  is 
commenced,  is  irregular. — Katlinstroth  v.  The  Astor  Iia/>k,  2  Ducr,  632. 


§144  JUDGMENT.  103 

6.  Tlie  principle  upon  which  a  receiver  of  partnership  property  is  appointed,  is  with 
the  view  of  winding  up  the  concern,  and  dividing  tiic  surplus,  and  not  for  the  purpose 
of  carr3Mng  on  the  iiartnersliip  business. — Jackson  v.  DeForest,  14  How.  Pr.,  81. 

7.  Upon  a  motion  for  the  receiver,  the  merits  arc  not  inquired  into.  It  relates 
only  to  the  preservation  of  the  property  in  controversy. — Ch(ipmanv.IIa)nmerslei/,4 
Wend.,  173. 

8.  A  receiver  should  apply  for  an  order  for  leave  to  sue  for  a  debt. — Merritt  v.  Lyon, 
16  Wend.,  410  ;  Smith  v.  Woodruff,  6  Abbott,  65. 

9.  A  receiver  who  has  obtained  authority  from  the  court  to  sue,  is  not  only  author- 
ized but  bound  to  proceed  with  his  action,  and  he  is  not  to  be  restrained  by  injunction 
out  of  anotluT  court,  or  by  making-  him  a  party  to  a  new  action,  and  obtaining  an  in- 
junction against  liim.  —  Wlnjidd  v.  Bacon,  24  Bai-b.,  155. 


TITLE    ^I. 

OF   THE   TRIAL   AND   JUDGMENT   IN   CIVIL   ACTIONS. 

CHAPTER  I. 

JUDGMENT   IN    GENERAL. 

144.  A  judgment  is  the  final  determination  of  tlie  rights  of  the 
parties  in  the  action  or  proceeding,  and  may  be  entered  in  term  or 
vacation. 

1.  By  a  final  judgment  is  to  be  understood,  not  a  final  determination  of  the  rights  of 
the  parties  in  the  subject  matter  of  the  litigation,  but  merely  of  the  particular  suit. — 
BeltY.  Davis,  1  Cal.,  134. 

2.  A  judgment  rendered  by  a  district  court,  after  the  time  appointed  by  law  for  its 
adjournment,  is  invalid,  and  will  be  reversed  on  appeal. — Smith  v.  Chichester,  1  Cal., 
409  ;  Coffinhernj  v.  Horrill,  5  Cal.,  493  ;  Peahody  v.  Phelps,  7  Cal.,  Jan.  T. ;  Wicks  v. 
Ludwiy,  8  Cal.,  Jan.  T. 

3.  After  the  adjournment  of  term,  the  court  cannot  disturb  its  judgment  except  in 
cases  prescribed  by  statute. — Baldwin  v.  Kramer,  2  Cal.,  582 ;    Morrison  v.  Dapman,  3  ' 
Cal.,  255  ;  Suydam  v.  Pitcher,  4  Cal.,  280  ;    Carpentier  v.  Bart,  5  Cal.,  406  ;    Robb  v. 
Robb,  6  Cal.,  21  ;  Shaw  v.  McGregor,  7  Cal.,  Oct.  T. 

4.  A  judgment  rendered  without  jurisdiction  can  be  attacked  directly  or  collaterally ; 
but  if  rendered  upon  irregular  process,  it  can  be  attacked  only  by  a  direct  proceeding 
against  the  judgment,  in  the  court  which  rendered  it,  or  on  appeal. —  Whiticell  v.  Barbier, 
7  Cal.,  Jan.  T. ;  Dorente  v.  Sidlican,  ib. 

5.  If  an  entire  judgment  be  composed  of  several  elements,  and  one  or  more  of  them 
is  illegal,  the  whole  judgment  is  void  as  against  creditors. — Taaffe  v.  Josephson,  7  Cal., 
April  T.  J-^-i       d  -^^       St^f,,iy"    —       /^  (-<-r-r  u"^<— ^,     'r<,;    ^a*^ 


104  JUDGMEXT.  §14.") 

G.  Knowingly  taking  a  judgment  for  more  than  was  due  at  the  cntr}-  thereof,  is  in 
itself  conclusive  evidence,  in  contemplation  of  law,  of  fraud. — ]h. 

7.  If  a  judgment  is  pronounced  by  a  court  having  jurisdiction,  no  matter  how  irreg- 
ular v.  may  be,  it  miiit  stand  until  set  aside  or  reversed  on  appeal.  But  when  entered 
by  a  mere  ministerial  officer,  without  autliority  of  law,  it  is  wholly  voitl. — Stearns  v. 
Aguirre,  7  Cal.,  April  T. 

8.  A  motion  in  arrest  of  judgment  may  be  made  under  the  code. — Noxon  v.  Bentley, 
7  How.  Pr.,  316. 

145.  Judgment  may  be  given  for  or  against  one  or  more  of  sev- 
eral plaintiffs,  and  for  or  against  one  or  more  of  several  defendants ; 
and  it  may,  -wlien  the  justice  of  the  case  requires  it,  determine  the 
ultimate  rights  of  the  parties  on  each  side,  as  between  themselves. 

1 .  Judgment  rendered  in  favor  of  plaintiff  against  one  defendant,  and  in  favor  of  the 
other  defendant  against  plaintirt". — Jion<e  v.  Chcmdler,  1  Cal.,  167  ;  Adams  v.  Gorham,  G 
Cal.,  68  ;   Chjiin  v.  Buiterflij,  2  Abbott,  446  ;  5  Duer,  327. 

2.  A  general  judgment  against  all  defendants,  where  only  one  was  served  with  i)ro- 
cess,  is  error. — EstcU  v.  Cheiten/,  3  Cal.,  467. 

3.  A  judgment  w-hich  is  right  will  not  be  reversed  because  it  is  rendered  upon  a 
wrong  reason. — Helm  v.  Dumars,  3  Cal.,  454. 

4.  It  appearing  upon  the  trial  of  an  action  brought  against  seven  defendants,  that 
five  of  them  only  were  liable,  the  plaintitf  moved  to  strike  out  the  names  of  the  other 
two.  Motion  granted,  with  the  condition  that  he  pay  their  costs  :  and  judgment  ren- 
dered in  favor  of  the  two  for  their  costs,  and  against  the  five  for  the  debt  and  costs. 
The  allowance  of  costs  to  the  two  defendants  severed,  sustained  on  appeal.  The 
proper  form  of  judgment  in  such  a  case. — Marks  v.  Bard,  1  Abbott,  63. 

146.  In  an  action  against  several  defendants,  the  coui-t  may,  in 
its  discretion,  render  judgment  against  one  or  more  of  them,  leaving 
the  action  to  proceed  against  the  others,  whenever  a  several  judgment 
is  proper. 

1.  It  must  appear  to  the  court  that  a  several  judgment  would  be  proper. — Stearns 
V.  Aguirre,  6  Cal.,  17G. 

2,  In  an  action  against  defendants  jointly  indebted,  where  one  only  is  served,  a  sev- 
eral judgment  may  be  entered  against  him. — Hirschjield  v.  Frauklin,  6  Cal.,  607. 

147.  The  relief  granted  to  the  plaintiff,  if  there  be  no  answer, 
shall  not  exceed  that  which  he  shall  have  demanded  in  his  complaint ; 
but  in  any  other  case  the  court  may  grant  him  any  relief  consistent 
with  the  case  "made  by  the  complaint,  and  embraced  within  the  issue. 

148.  An  action  may  be  dismissed,  or  a  judgment  of  non-suit  en- 
tered in  the  following  cases : 


§148  JUDGMENT.  105 

1st.  By  the  plaintiff  himself,  at  any  time  before  trial,  upon  the  pay- 
ment of  costs,  if  a  counter  claim  has  not  been  made.  If  a  provisional 
remedy  has  been  allowed,  the  undertaking  shall  thereupon  be  delivered 
by  the  clerk  to  the  defendant,  who  may  have  his  action  thereon. 

2d.  By  either  party,  upon  the  written  consent  of  the  other. 

3d.  By  the  court,  when  the  plaintiff  fails  to  appear  on  the  trial,  and 
the  defendant  appears  and  asks  for  the  dismissal. 

4th.  By  the  court,  when  upon  the  trial,  and  before  the  final  sub- 
mission of  the  case,  the  plaintiff  abandons  it. 

5th.  By  the  court,  upon  motion  of  the  defendant,  when  upon  the 
trial  the  plaintiff  fails  to  prove  a  sufficient  case  for  the  jury.  The  dis- 
missal mentioned  in  the  first  two  subdivisions,  shall  be  made  by  an 
entry  in  the  clerk's  register.  Judgment  may  thereupon  be  entered 
accordingly. 

1.  1st.  An  appeal  does  not  lie  in  favor  of  plaintiff,  from  a  judgment  of  non-suit 
entered  on  his  own  motion. — Imley  v.  Beard,  6  Cal.,  666. 

2.  After  a  set-off  is  pleaded  and  admitted,  plaintiff  cannot  discontinue  as  a  matter 
of  course. —  Cockle  v.  Underwood,  1  Abbott,  1 ;  .3  Duer,  676  ;  contra,  Rees  v.  Van  Patten 
1.3  How.  Pr.,  258. 

3.  If  not  admitted,  the  plaintiff  may  discontinue — Seahord  and  Roanoke  R.  R.  Co. 
V.   Ward,  1  Abbott,  46;   Oahsmith-\.  Sutherland,  4  ib.,  15. 

4.  Costs  by  way  of  indemnity,  ought  not  to  be  taxed  in  case  of  non-suit. Rice  v. 

Leonard,  5  Cal.,  61. 

5.  3d.  One  of  several  defendants  who  have  not  been  served  with  a  summons  or 
complaint,  cannot  voluntarily  appear  and  move  to  dismiss  tlie  complaint,  where  his 
rights  are  not  affected.  He  must  wait  to  bo  summoned. — Tracy  v.  Reynolds  7  How 
Pr.,  327. 

6.  A  dismissal  of  complaint  for  want  of  appearance,  is  a  judgment  in  the  action  in 
favor  of  the  defendant. — TillspanghY.  Dick,  8  ib.,  33. 

7.  Where  a  bill  disclosed  that  the  same  subject-matter  had  been  litigated  between 
the  same  parties  in  a  prior  suit,  and  that  in  the  said  suit,  the  plaintiff  in  this  suit  had  set 

up  the  same  equity  which  he  claims  by  this  bill,  tlie  bill  was  ordered  to  be  dismissed. 

Bamett  v.  Kilhourne,  3  Cal.,  327. 

8.  5th.  Where  the  defendant  moved  for  a  non-suit,  and  afterwards  introduced  evi- 
dence supplying  the  defect  in  the  plaintiff's  testimony,  on  which  the  motion  for  non-suit 
was  founded.  Held,  that  the  defendant  had  tiiereby  waived  his  motion,  and  could  not 
insist  upon  it  in  the  appellate  court. — Ringgold  v.  Haven,  1  Cal.,  108  ;  Smith  v.  Comp- 
ton,  6  Cal.,  24  ;    Winans  v.  Hardenhurgh,  7  Cal.,  Oct.  T. 

9.  Plaintiff  may  be  non-suited  against  his  consent.  Where  there  is  no  evidence  to 
warrant  a  verdict,  it  is  tlie  duty  of  the  court  to  enter  a  non-suit. — Rinqipld  v.  Haven  1 
Cal.,  108  ;  Dalri/mple  v.  Hanson,  ib.,  125  ;  Matrer  v.  Brown,  ib.,  221  ;  Peralta  v.  Mariea 
3  Cal.,  185. 

10.  Wliere  a  party  moves  for  a  non-suit  upon  a  specific  ground,  he  cannot,  on  ap- 

H 


106  JIDOMRNT    BY    DEFAULT.  §140 

peal,  assume  a  different  position. — Ledlry  v.  ITai/ps,  1  Cal.,  160:    Matrei-v.  Broun,  1 
Cal.,  221. 

11.  If  no  olijection  he  made  to  the  introduction  of  prom is.«ory  notes  in  evidence, 
whose  endorsements  are  not  denied  with  sufficient  certainty  in  the  answer,  a  non-suit 
cannot  he  granted  on  that  ground. — PinJcham  v.  McFurland,  5  Cal.,  137. 

12.  After  a  motion  for  a  non-suit,  the  court  may  allow  an  amendment  of  the  com- 
plaint, if  it  will  not  operate  as  a  surprise  upon  the  defendants. — Farmery.  Cram, 
7  Cal.,  Jan.  T. 

13.  Under  like  circumstances  the  court  may  allow  evidence  to  be  introduced. — 
Priest  V.  Union  Canal  Co.,  6  Cal.,  170. 

14.  The  court  at  the  trial  may  remedy  by  amendment,  a  variance  between  the  case 
made  by  the  proof  and  the  complaint,  where  all  the  f\icts  essential  to  the  rights  of  the 
parties  are  put  in  issue  by  the  answer  and  reply. — Hall  v.  (ioukl,  3  Kern.,  127. 

149.  In  every  case,  other  than  those  mentioned  in  the  last  section, 
the  judgment  shall  be  rendered  on  the  merits. 


CHAPTER  II. 

JUDGMENT    UPON   FAILURE   TO    ANSWER. 

150.  Judgment  may  be  had,  if  the  defendant  fail  to  answer  the 
complaint,  as  follows : 

1st.  In  an  action  arising  upon  contract  for  the  recovery  of  money  or 
damages  only,  if  no  answer  has  been  filed  with  the  clerk  of  the  court 
within  the  time  specified  in  the  summons,  or  such  further  time  as  may 
have  been  granted,  the  clerk,  upon  the  application  of  the  plaintiff,  shall 
enter  the  default  of  the  defendant,  and  immediately  thereafter  enter 
judgment  for  the  amount  specified  in  the  summons,  including  the  costs, 
against  the  defendant,  or  against  one  or  more  of  several  defendants  in 
the  cases  provided  for  in  section  thirty-two. 

2d.  In  other  actions,  if  no  answer  has  been  filed  with  the  clerk  of  the 
court  within  the  time  specified  in  the  summons,  or  such  further  time 
us  may  have  been  granted,  the  clerk  shall  enter  the  default  of  the  de- 
fendant ;  and  thereafter  the  plaintiff  may  apply  at  the  first  or  any  sub- 
serjuent  term  of  the  court  for  the  relief  demanded  in  the  complaint. 
If  the  taking  of  any  account,  or  the  proof  of  any  fact,  be  necessary  to 
enable  the  court  to  give  judgment,  or  to  carry  the  judgment  into  effect, 
the  court  may  take  the  account  or  hear  the  j)roof ;  or  may,  in  its  dis- 
cretion, order  a  reference  for  that  purpose.  And  where  the  action  is 
for  the  recovery  of  damages,  in  whole  or  in  part,  the  court  may  order 


^150  JUDGMENT   BY    DEFAULT.  107 

the  damages  to  be  assessed  by  a  jury :  or,  if  to  determine  the  amount 
of  damages,  the  examination  of  a  long  account  be  necessary,  by  a 
reference  as  above  provided. 

M.  In  actions  where  the  service  of  the  summons  was  by  pubhcation, 
the  plaintiff,  upon  the  expiration  of  the  time  designated  in  the  order  of 
pubUcation,  may,  upon  proof  of  the  pubhcation,  and  that  no  answer  has 
been  filed,  apply  for  judgment ;  and  the  court  shall  thereupon  require 
proof  to  be  made  of  the  demand  mentioned  in  the  complaint ;  and  if  the 
defendant  be  not  a  resident  of  the  state,  shall  require  the  plaintiff  or 
his  agent  to  be  examined  on  oath,  respecting  any  payments  that  have 
been  made  to  the  plaintiff,  or  to  any  one  for  his  use,  on  account  of  such 
demand,  and  may  render  judgment  for  the  amount  which  he  is  entitled 
to  recover. 

1.  There  may  be  error  in  a  judgment  by  default,  as  well  as  in  a  judgment  rendered 
upon  issue,  joined  in  the  pleadings,  and  trial  by  a  jury,  and  the  error  may  be  corrected 
on  appeal. — Stevens  v.  Ross,  1  Cal.,  94. 

2.  If  the  summons  be  radically  defective,  it  will  not  support  a  judgment  by  default. 
The  State  v.  Woodlief,  2  Cal.,  241. 

3.  Judgment  by  default  will  be  set  aside  for  surprise. — Bidk-man  v.  Kewen,  2  Cal., 
248. 

4.  A  final  judgment  by  deficit  can  properly  be  rendered  upon  an  unliquidated  de- 
mand, when  the  defendant  has  been  notified  in  the  summons  of  the  amount  for  which 
the  plaintiff  will  take  judgment. — Hartman  v.  Williams,  4  Cal.,  254. 

5.  A  judgment  by  default  will  be  reversed  where  the  record  shows  that  the  defendant 
has  not  been  legally  served  with  process. — Joyce  v  Joyce,  5  Cal.,  449. 

6.  A  judgment  by  defoult  based  upon  service  of  summons  upon  an  elector  on  elec- 
tion day,  is  irregular. — Bierce  v.  Sniitli,  2  Abbott,  411. 

7.  A  default  is  a  confession  only  of  the  material  allegations  in  the  complaint  which 
must  be  established  to  entitle  the  plaintiff  to  judgment.  The  default  only  admits  the 
material  and  traversable  matters  set  out  in  the  complaint.  A  default  for  not  answering 
in  an  action  for  assault  and  battery  entitles  the  plaintiff  to  a  judgment  for  only  nominal , 
damages.  If  he  claims  more  damages,  he  must  prove  the  facts  that  will  entitle  him  to 
recover  them. —  Gilbert  v.  Bounds,  li  How.  Pr.,  46. 

8.  1st.  This  section  only  refers  to  section  thirty-two,  when  all  the  defendants  arc 
not  served. — Stearns  v.  Aguirre,  7  Cal.,  April  T. 

9.  2d.  In  ejectment  to  recover  on  prior  possession,  the  want  of  an  allegation  in  the 
complaint  of  an  actual  ouster,  is  a  defect  which  cannot  be  cured  by  a  default  taken 
through  the  mistake  of  defendant's  counsel. —  Watson  v.  Zimmerman,  6  Cal.,  46. 

10.  The  provision  as  to  a  reference  sustained  in  Emeric  v.  Tarns,  6  Cal.,  155. 
3d.     See  Sec.  68. 

11.  Defendant  has  forty  days  time  to  answer  the  complaint  after  the  service  of 
summons  is  made  by  three  months  publication. —  Greivell  v.  Henderson,  5  Cal.,  465  ; 
Dykers  v.  Woodward,  7  How.  Pr.,  313. 


108  ISSUES.  §151 

-■'*■ 

CHAPTER  III. 

OF   ISSUES,  AND   THE   MANNER    OF   THEIR   DISPOSITION. 

151.  An  issue  arises  when  a  fact  or  conclusion  of  law  is  maintained 
by  the  one  party,  and  is  controverted  by  the  other.  Issues  are  of  two 
kinds : 

1st.  Of  law ;  and, 
2d.  Of  fact. 

152.  [1854.]  An  issue  of  law  arises  upon  a  demurrer  to  the  com- 
plaint, or  answer  to  some  part  thereof. 

153.  [1854.]  An  issue  of  fact  arises : 

let.  Upon  a  material  allegation  in  the  complaint,  controverted  by 
the  answer ;  and, 

2d.  Upon  new  matter  in  the  answer,  except  an  issue  of  law  is  joined 
therein. 
^' 
•    154.     An  issue  of  law  shall  be  tried  by  the  court,  unless  it  be  re- 
ferred, upon  consent,  as  provided  in  chapter  six  of  this  title. 

155.  An  issue  of  fact  shall  be  tried  by  a  jury,  unless  a  jury  trial 
is  waived,  or  a  reference  be  ordered,  as  provided  in  this  act.  Where 
there  are  issues  both  of  law  and  fact  to  the  same  complaint,  the  issues 
of  law  shall  be  first  disposed  of. 

15G.  The  clerk  shall  enter  causes  upon  the  calendar  of  the  court, 
according  to  the  date  of  the  issue.  Causes  once  placed  on  the  calen- 
dar for  a  general  or  special  term,  if  not  tried  or  heard  at  such  term, 
shall  remahi  upon  the  calendar  from  court  to  court,  until  finally  dis- 
posed of. 

157.  Either  party  may  bring  the  issue  to  trial,  or  to  a  hearing,  and 
in  the  absence  of  the  adverse  party,  unless  the  court  for  good  cause 
otherwise  direct,  may  proceed  with  his  case,  and  take  a  dismissal  of 
the  action,  or  a  verdict  or  judgment,  as  the  case  may  require. 

158.  A  motion  to  postpone  a  trial  on  the  ground  of  the  absence  of 


§159  TRIAL    BY   JURY.  ..  '  10tr'**< 

evidence,  shall  only  be'maae  upon  affidavit,  showing  <li^m;itcrialityj?^  ^^.^ 

the  evidence  expected  to  be  obtained f^ndthrtM^  dijigencehas  be^r^.      .,4 
used  to  procure  it.     The  court  may  also  requi^tlie  moving  party  to^;g^^-^ 
state,  upon  affidavit,  the  evidence  which  he.explcts  to  obtain,  and  if 
the  adverse  party  t!Til^n»nmi^nit  that  such  evidence  would  be  given, 
and  that  it  be  considered  as  actually  given  on  the  trial,  or  offered  and 
overruled  as* improper,  the  trial  shall  not  be  postponed. 

See  Sec.  664.  \    V'K     , 

1 .     The  moving  party  must  show  by  affidavit  suftioiepi  diligence  on  liis  part,  and  that 
he  did  all  in  his  power. — Frank  v.  Brady,  7  Cal.,  July  T.  • 


y 


CHAPTER  IV. 

TRIAL    BY    JURY. 

ARTICLE  I. 
FORMATION   OF   THE   JURY. 


r- 


159.  When  the  "action  is  called  for  trial  by  jury,  the  clerk  %B|pre- 
pare  separate  ballots  containing  the  names  of  the  jurors  summoned^  wh<^ 
have  appeared  and  not  been  excused,  and  deposit  them  in  a  box.  He  shall 
then  draw  from  the  box  twelve  names,  and  the  persons  whose  names 
are  drawn  shall  constitute  the  jury.  If  the  ballots  become  exhausted 
before  the  jury  is  complete,  or  if  from  any  cause  a  juror  or  jurors  be 
excused  or  discharged,  the  sheriff  shall  summons,  under  the  direction 
of  the  court,  from  the  citizens  of  the  county  and  not  from  bystanders, 
so  many  qualified  persons  as  may  be  necessary  to  complete  the  jury. 
The  jury  shall  consist  of  twelve  persons,  unless  the  parties  consent  to 
a  less  number.  The  parties  may  consent  to  any  number  not  less  than 
three.  Such  consent  shall  be  entered  by  the  clerk  in  the  minutes  of 
the  trial. 

1.  A  juror  must  be  an  elector  in  the  county  in  which  he  is  returned,  and  have  resided 
in  the  county  thirty  days. — Sampson  v.  Schaffer,  3  Cal.,  107. 

2.  The  right  of  trial  by  jury  cannot  be  waived  by  implication,  but  may  be,  in  the 
mode  prescribed  by  lav:.— Smith  v.  Pollock,  2  Cal.,  92  ;  Ru.tsell  v.  Elliott,  ib.,  245 ;  Ex- 
line  v.  Smith,  5  Cal.,  112. 

3.  Parties  to  a  suit  in  chancery  are  not  entitled  to  a  trial  by  jury. —  Walker  v.  Sedg- 
wick, ib.,  192  ;    Cahoon  v.  Levy,  ib.,  294. 

4.  In  chancery  cases  the  trial  by  jury  is  but  advisory  to  the  court,  and  improper 


110  TRIAL  BY  JURY.  §160 

testimony  and  erroneous  instructions  can  do  no  injury  if  justice  has  been  rendered  in 
the  final  result. — Still  v.  Saunders,  7  Cal.,  Oct.  T. 

160.  As  soon  as  the  jury  is  completed,  an  oath  or  affirmation  shall 
be  administered  to  the  jurors,  in  substance,  that  thej  each  of  them  will 

well  and   truly  try  the  matter  at  issue  between the  plaintiff, 

and the  defendant,  and  a  true  verdict  render  according  to  the 

evidence. 

161.  Either  party  may  challenge  the  jurors,  but  when  there  are 
several  parties  on  either  side  they  shall  join  in  a  challenge  before  it 
can  be  made.  The  challenges  shall  be  to  individual  jurors,  and  shall 
either  be  peremptory  or  for  cause.  Each  party  shall  be  entitled  to 
four  peremptory  challenges. 

/  (r/  /j      162.     Challenges  for  cause  maybe  taken  on  one  or  more  of  the  fol- 
lowing grounds  : 

1st.  A  want  of  any  of  the  qualifications  prescribed  by  statute  to 
render  a  person  competent  as  a  juror ; 

2d.  Consanguinity  or  affinity  within  the  third  degree  to  either  party  ; 

3d.  Standing  in  the  relation  of  guardian  and  ward,  master  and  ser- 
vant, employer  and  clerk,  or  principal  and  agent  to  either  party ;  or 
being  a  member  of  the  family  of  either  party  ;  or  a  partner  in  business 
with  either  party ;  or  being  security  on  any  bond  or  obligation  for 
either  party  ; 

4th.  Having  served  as  a  juror  or  been  a  witness  on  a  previous  trial 
between  the  same  parties  for  the  same  cause  of  action ; 

5th.  Interest  on  the  part  of  the  juror  in  the  event  of  the  action,  or 
in  the  main  question  involved  in  the  action  ; 

6th.  Having  formed  or  expressed  an  unqualified  o})inion,  or  beUef 
as  to  the  merits  of  the  action  ; 

7th.  The  existence  of  a  state  of  mind  in  the  juror  evincing  enmity 
against,  or  bias  to,  either  party. 
6 
/^  163.     Challenges  for  cause  shall  be  tried  by  the  court.     The  juror 
/^-TJhallenged,  and  any  other  })erson,  may  be  examined  as  a  witness  on  the 
y-  trial  of  the  challenge. 


r 


§165  CHARGE  TO  THE  JURY.  Ill 


ARTICLE  II. 

CONDUCT    OF    THE    TRIAL. 

164.  If,  after  the  impanneling  of  the  jury,  and  before  verdict,  a 
juror  become  sick,  so  as  to  be  unable  to  perform  his  duty,  the  court 
may  order  him  to  be  discharged.  In  that  case  the  trial  may  proceed 
with  the  other  jurors,  or  a  new  jury  may  be  sworn,  and  the  trial  begin 
anew ;  or  the  jury  may  be  discharged,  and  a  new  jury  then  or  after- 
lerwards  impanneled. 

See  Sec.  6C3. 

1.  The  witluh-avv.nl  of  a  juror  and  continuance  of  a  case  thereby,  is  no  frround  for 
reversing  a  judgment  subsequently  obtained. — Benedict  v.  Cozzens,  4  Cal.,  381. 

165.  In  charging  the  jury,  the  court  shall  state  to  them  all  matters 
of  law  whlbh  it  thinks  necessary  for  their  information  in  giving  their 
verdict ;  and  if  it  state  the  testimony  of  the  case  it  shall  also  inform 
the  jury  that  they  are  the  exclusive  judges  of  all  questions  of  fact. 
The  court  shall  furnish  to  either  party  at  the  time,  upon  request,  a 
statement  in  writing  of  the  points  of  law  contained  in  the  charge  ;  or 
shall  sign  at  the  time,  a  statement  of  such  points  prepared  and  sub- 
mitted by  the  counsel  of  either  party. 

1.  It  seems  improper  to  instruct  the  jury  to  talvc  into  consideration  all  the  facts  and 
do  equal  justice  between  all  the  parties — it  may  mislead  them. — Kelly  v.  Cunningham,  1 
Cal.,  366. 

2.  The  charge  of  a  judge  to  a  jury  should  be  given  with  reference  to  the  testimony 
adduced  on  the  trial;  and  where  the  charge  is  returned  on  appeal, but  no  portion  of  the 
testimony,  the  court  will  not  undertake  to  determine  as  to  the  correctness  or  incorrect- 
ness of  the  charge. — People  v.  McVauley,  1  Cal.,  379. 

3.  The  whole  charge  of  the  district  judge  should  be  taken  together,  and  when  con- 
sidered in  this  way,  if  it  appear  that  the  jury  have  not  been  misled  by  it,  a  new  trial 
will  not  be  granted ;  altliough  some  of  the  instructions  may  in  slight  respects  be  repug- 
nant to  each  other. — Carrington  v.  Pacific  M.  S.  S  Co.,  1  Cal.,  475. 

4.  The  court  must  give  or  refuse  instructions.  The  sense  must  not  be  altered,  al- 
though the  phraseology  may  be  modified. — Fowler  v.  Smith,  2  Cal.,  39  ;  Conrad  v.  Lind- 
ley,  2  Cal.,  173  ;  Riissel  v.  Amador,  3  Cal.,  400  ;  Jamson  v.  Quivey,  5  Cal.,  490. 

.5.  The  court  should  refuse  to  instruct  the  jury  on  abstract  questions  of  law. — Fowler 
V.  Smith,  2  Cal.,  39. 

6.  An  erroneous  instruction  may  be  assigned  for  error,  if  there  be  any  evidence  ren- 
dering it  pertinent  to  the  issue. — Buzzell  v.  Bennett,  2  Cal.,  101. 

7.  It  is  error  in  the  court  to  refuse  to  instruct  the  jury  in  accordance  with  the  pro- 


112 


CHAR(tE  TO  TUE  JURY.  §16G 


visions  of  the  135th  section  of  the  act  to  regulate  settlements  of  the  estates  of  deceased 
persons,  when  requested  so  to  do,  and  the  evidence  shows  that  it  is  proper  and  relevant. 
Benedict  v.  Iliirif/ln,  2  Cal.,  385. 

8.  Where  the  complaint  does  not  charge  the  mortgagee  in  possession  with  negli- 
gence or  improper  conduct,  in  leasing  the  mortgaged  premises,  but  requires  him  to 
account  for  the  rents  he  actually  received,  it  is  proper  in  the  court  to  refuse  to  instruct 
the  jury  that  he  might  have  leased  the  property  differently,  and  to  charge  him  with  what 
he  might  have  received,  if  so  leased. — Benha/n  v.Rowe,  2  Cal.,  387. 

9.  The  question  of  notice  of  dissolution  of  partnei-ship,  is  a  fact  for  the  jury  nnder 
the  charge  of  the  court.— Rabe  v.  Wells,  3  Cal.,  148. 

10.  Where  the  counsel  hand  to  the  court  a  multiplicity  of  instructions  which  cannot 
be  examined  into  for  want  of  time,  the  court  has  discretion  to  refuse  them.— Anderson  v. 
Parker,  6  Cal.,  197. 

11.  In  an  action  for  malicious  prosecution,  it  is  enor  to  submit  to  the  jury  whether 
there  was  probable  cause  ;  the  court  should  determine  that  (juestion. — Potter  v.  Seale,  7 
Cal.,  Oct.  T. 

12.  The  court  may  refuse  to  give  an  instruction  on  the  ground  that  it  had  Ixsen  al- 
ready substantially  given  by  the  court. — Belden  v.  Uenrujues,  7  Cal.,  July  T. 

13.  An  instruction  to  the  jury  "  to  find  for  the  defendant,  as  plaintiff  had  failed  to 
prove  a  redemption,"  is  clearly  erroneous.  The  question  of  redemption  was  the  main 
point  in  issue. — Battersby  v.  Abbott,  8  Cal.,  April  T. 

14.  A  request  to  charge  the  jury  should  be  in  such  form  that  the  court  may  charge 
in  the  terms  of  tlie  request,  without  (lualirication. —  Ccn-penter  v.  Stilwell,  1  Kern.,  61. 

15.  The  refusal  of  the  judge  to  charge  the  jury  as  particularly  reijuested,  is  not 
error,  where  he  had  previously  charged  them  in  sul)Stancc  as  requested. — Ilolbrook  v. 
Utica  attd  Schenectady  R.  R.  Co.,  2  Kern.,  236. 

16.  The  judge  has  no  right  to  intimidate  a  jury  who  are  unable  to  agree  upon  a  ver- 
dict, or  to  affect  their  deliberations. — (ireen  v.  Telfair,  11  How.  Pr.,  260. 

17.  A  judge  is  bound  to  instruct  a  jury  upon  each  proposition  of  law  submitted  to 
him  by  counsel,  bearing  upon  the  evidence. — Zubriskie  v.  Smith,  3  Kern.,  322. 

166.  After  hearing  the  charge,  the  jury  may  either  decide  in  court, 
or  retire  for  dehberation.  If  they  retire,  they  shall  be  kept  together 
in  a  room  provided  for  them,  or  some  other  convenient  place,  under 
tiie  charge  of  one  or  more  officers,  until  they  agree  upon  their  verdict, 
or  are  discharged  by  the  court.  The  officer  shall,  to  the  utmost  of 
his  ability,  keep  the  jury  together  separate  from  other  persons  ;  he 
shall  not  suffer  any  communication  to  be  made  to  them,  or  make  any 
himself,  unless  by  order  of  the  court,  except  to  ask  them  if  they  iiave 
agreed  upon  then*  verdict ;  and  he  shall  not,  before  the  verdict  is  ren- 
dered, communicate  to  any  person  the  state  of  their  deliberations,  or 
the  verdict  agreed  upon. 

167.  Upon  retiring  for  dehberation  the  jury  may  take  with  them 


§172  CHARGE  TO  THE  JURY.  113 

all  papers  (except  depositions,)  which  have  been  received  as  evidence 
in  the  cause ;  or  copies  of  such  papers  as  ought  not,  in  the  opinion  of 
the  court,  to  be  taken  from  the  person  having  them  in  possession  ;  and 
they  may  also  take  with  them  notes  of  the  testimony,  or  other  pro- 
ceedings on  the  trial,  taken  by  themselves,  or  any  of  them  ;  but  none 
taken  by  any  other  person. 

168.  After  the  jury  have  retired  for  deliberatior,  if  there  be  a  disa- 
greement between  them  as  to  any  part  of  the  testimony,  or  if  they  desire 
to  be  informed  of  any  point  of  law  arising  in  the  cause,  they  may  re- 
(juire  the  officer  to  conduct  them  into  com't.  Upon  their  being  brought 
into  court,  the  information  required  shall  be  given  in  the  presence  of, 
or  after  notice  to,  the  parties  or  counsel. 

1.  It  was  error  after  the  jury  had  retired,  to  allow  them  to  come  into  court  and  in- 
struct them  in  the  absence  of  the  parties  or  their  counsel. — Redman  v.  Gulnack,  5  Cal., 
148. 

169.  In  all  cases  where  a  jury  are  discharged,  or  prevented  from 
giving  a  verdict,  by  reason  of  accident  or  other  cause,  during  the 
progress  of  the  trial,  or  after  the  cause  is  submitted  to  them,  the 
aotion  may  be  again  tried  immediately,  or  at  a  future  time,  as  the  court 
shall  direct. 

170.  While  the  jury  are  absent  the  court  may  adjourn,  from  time 
to  time,  in  respect  to  other  business ;  but  it  shall  nevertheless  be 
deemed  open  for  every  purpose  connected  with  the  cause  submitted  to 
the  jury,  until  a  verdict  is  rendered,  or  the  jury  discharged.  The 
court  may  direct  the  jury  to  bring  m  a  sealed  verdict,  at  the  opening 
of  the  court,  in  case  of  an  agreement  during  a  recess,  or  adjournment 
for  the  day.  A  final  adjournment  of  the  court  for  the  term  shall  dis- 
charge the  jury. 

171.  When  the  jury  have  agreed  upon  the  verdict,  they  shall  be 
conducted  into  court  by  the  officer  having  them  in  charge.  Their 
names  shall  then  be  called,  and  they  shall  be  asked  by  the  court,  or 
the  clerk,  whether  they  have  agreed  upon  their  verdict;  and  if  the 
foreman  answer  in  the  affirmative,  they  shall,  on  being  required,  de- 
clare the  same. 

172.  If  the  verdict  be  informal  or  insufficient,  in  not  covering  the 


114  VERDICT.  §173 

whole  issue  or  issues  submitted,  the  verdict  may  be  corrected  by  the 
jurj  under  the  advice  of  the  court,  or  the  jury  may  be  again  sent  out. 

1 .  The  verdict  of  a  jury  may  be  amended  or  corrected  so  as  to  conform  to  the  facts 
where  there  is  no  doubt  as  to  such  facts  and  of  the  real  intentions  of  the  jury. — True- 
body  V.  Jacobson,  2  Cal.,  263  ;  Perkins  v.  Wilson,  3  Cal.,  137  ;  Little  v.  Larrabee,  2 
Greenl.,  37  ;  Burhans  v.  Tihhits,  7  How.  Pr.,  21. 

173.  When  the  verdict  is  given,  and  is  not  informal  or  insufficient, 
the  clerk  shall  immediately  record  it,  in  full,  in  the  minutes,  and  shall 
read  it  to  the  jury,  and  inquire  of  them  whether  it  be  their  verdict.  If 
any  juror  disagree,  the  jury  shall  be  again  sent  out ;  but  if  no  disagree- 
ment be  expressed  the  verdict  shall  be  complete,  and  the  jury  shall  be 
discharged  from  the  case. 

1.  If  the  record  shows  what  the  verdict  is,  the  affidavit  of  jurors  will  not  be  taken  to 
contradict  it. — Amshi/  v.  Dirkhouse,  4  Cal.,  102  ;  Wilson  v.  Berryman,  5  Cal.,  44  ;  Cas- 
tro V.  Gill,  ib.,  40. 

2.  The  court  siiall  direct  the  verdict  of  a  jury  to  be  recorded  as  rendered  by  it.  That 
should  be  treated  as  the  verdict  wiiich  the  jury  actually  brings  in. — Moody  v.  McDonald, 
4  Cal.,  297. 

3.  The  verdict  as  recorded  need  not  be  put  in  a  statement  on  appeal. — Reynolds  v. 
Harris,  7  Cal.,  Oct.  T. 


ARTICLE  III. 

THE    VERDICT. 

174.  The  verdict  of  a  jury  is  either  general  or  special.  A  general 
verdict  is  that  by  which  they  pronounce  generally  upon  all  or  any  of 
the  issues,  either  in  favor  of  the  plaintiflf  or  defendant ;  a  special  ver- 
dict is  that  by  which  the  jury  find  the  facts  only,  leaving  the  judgment 
to  the  court.  The  special  verdict  shall  present  the  conclusions  of  fact 
as  established  by  the  evidence,  and  not  the  evidence  to  prove  them  ; 
and  those  conclusions  of  fact  shall  be  so  presented  as  that  nothing  shall 
remain  to  the  court  but  to  draw  from  them  conclusions  of  law. 

1.     The  finding  of  a  jury  will  not  be  di.sturl)cd  : 

o.  Unless  impeached  for  fraud,  misconduct,  or  mistake. — Pnync  v.Jucobs,  1  Cal.,  39  ; 
Perry  v.  Cochran,  ib.,  180  ;    Gcon/e  v.  Ixiu;  ib.,  363. 

6.  Where  the  evidence  in  a  new  trial  would  warrant  tlie  same  verdict. — Tohlvr  v. 
Fohom,  1  Cal.,  207. 

c.  For  conflicting  evidence. — .Johnson  v.  PendUlon,  1  Cal.,  132;    ]'oyan  v.  Barrier,  ib., 


§175  VERDICT.  115 

186  ;  Hoppe  v.  Iid)h,  ib.,  373  ;  Dwinelle  v.  Hcuriqnez,  ib.,  387  ;  Amshy  v  Dickfwuse,-i  Cal., 
102 ;  Dtiell  v.  Bear  River  Co.,  5  Cal.,  84. 

d.  If  incompetent  evidence  hiul  no  influence  on  the  jury. — Mateer  v.  Brown,  1  Cal., 
231;  Perssev.  C'o/e,  ib.,  369  ;  Punaud  v.  Jones,  \h.,  488  ;  Priest  v.  U?iion  Canal  Co.,  6 
Cal.,  170. 

2.  A  verdict  of  a  jury  will  not  be  set  aside  on  the  ground  that  one  of  the  jurors 
"  knew  and  was  aware  of  the  circumstances  connected  with  the  aftair,"  the  subject  mat- 
ter of  the  suit,  where  no  objection  was  made  to  him  until  after  the  verdict  was  rendered  ; 
and  it  not  appearing  that  he  had  formed  or  expressed  an  opinion  before  the  trial  or  was 
in  any  way  biased  in  favor  of  tiie  plaintiff'. — Laurence  v.  Collier,  1  Cal.,  37. 

3.  Tiie  finding  of  a  jury  on  (luestions  of  fact  is  final  and  conclusive. — Perry  v.  Coch- 
ran, 1  Cal.,  180. 

4.  Where  the  verdict  is  clearly  contrary  to  evidence  the  court  will  reverse  the  judg- 
ment.— Acguitalv.  Crowell,  1  Cal.,  191. 

5.  A  verdict  may  be  amended  in  form  so  as  to  make  it  good  in  law,  but  must  not 
affect  the  substance. — Truehody  v.  Jacobson,  2  Cal.,  269  ;  Perkins  v.  Wilson,  3  Cal.,  137  ; 
Little  V.  Larrabee,  2  Greenl.,  37  ;  Burhans  v.  Tibbits,  7  How.  Pr.,  21 . 

6.  An  informal  verdict,  if  consented  to  and  entered,  the  informality  will  not  be  re- 
viewed.— Treadwellv.  Wells,  4  Cal.,  260. 

7.  Jurors  will  not  be  allowed  to  impeach  their  own  verdict. — Amsby  v.  Diclhouse, 
4  Cal.,  102  ;  Castro  v.  Gill,  .5  Cal.,  40  ;  Wilson  v.  Bernjman,  5  ib.,  44  ;  Green  v.  Bliss, 
12  How.  Pr.,  428. 

8.  A  joint  verdict  against  a  defendant  answering,  and  a  defaulting  defendant,  is 
conclusive  against  all,  where  a  separate  verdict  has  not  been  demanded. — Anderson  v. 
Parker,  6  Cal.,  197. 

9.  Jurors  will  be  allowed  to  refute  any  inference  of  improper  conduct,  although  they 
may  not  approve  such  conduct. — Downer  \.  Barter,  Vermont  supreme  court,  1857  ;  10 
Law  Reporter,  N.  S.,  49. 

10.  Where  the  verdict  is  the  result  of  a  computation  of  aggregation  and  division,  it 
is  bad. —  Wilson  v.  Berry  man,  5  Cal.,  44  ;    Conklin  v.  Hill,  2  How.  Pr.,  6. 

175.  [185-4.]  In  an  action  for  tlie  recovery  of  money  only,  or 
specific  real  property,  the  jury,  in  their  discretion,  may  render  a  gen- 
eral or  special  verdict.  In  all  other  cases  the  court  may  direct  the 
jury  to  find  a  special  verdict,  in  writing,  upon  all  or  any  of  the  issues, 
and  in  all  cases  may  instruct  them,  if  they  render  a  general  verdict, 
to  find  upon  particular  questions  of  fact,  to  be  stated  in  writing,  and 
may  direct  a  written  finding  thereon.  The  special  verdict  or  finding 
shall  be  filed  with  the  clerk,  and  entered  upon  the  minutes  ;  where  a 
special  finding  of  facts  shall  be  mconsistent  with  the  general  verdict, 
the  former  shall  control  the  latter,  and  the  court  shall  give  judgment 
accordingly. 

1.     The  court  may  direct  a  special  verdict. — Burritt  v.  Gibson,  3  Cal.,  396. 


IIG  TRIAL  BY  THE  COURT.  §176 

2.  A  general  verdict  will  conclude  all  parties  who  do  not  answer  separately,  or  de- 
mand separate  verdicts. —  Wiitans  v.  Cliristy,  4  Cal.,  70. 

176.  When  a  verdict  is  found  for  the  plaintiflF,  in  an  action  for  the 
recovery  of  money,  or  for  the  defendant,  Avhen  a  counter  claim  for  the 
recovery  of  money  is  cstabUshed,  exceeding  the  amount  of  the  plam- 
tiflF's  claim  as  established,  the  jury  shall  also  find  the  amount  of  the 
recovery. 

177.  In  an  action  for  the  recovery  of  specific  personal  property, 
if  the  property  has  not  been  delivered  to  the  plaintiff,  or  the  defendant, 
by  his  answer,  claim  a  return  thereof,  the  jury,  if  their  verdict  be  in 
favor  of  the  plaintiff,  or  if,  being  in  favor  of  the  defendant,  they  also 
find  that  he  is  entitled  to  a  return  thereof,  shall  find  the  value 
of  the  property,  and  may  at  the  same  time,  assess  the  damages,  if  any 
are  claimed  in  the  complaint  or  answer,  which  the  prevaihug  party 
has  sustained  by  reason  of  the  taking  or  detention  of  such  property. 

1 .  This  verdict  must  be  in  the  alternative  for  a  return  of  the  property,  or  for  the 
value  thereof,  as  assessed  in  case  a  return  cannot  be  had. — Dici(//it  v.  E)ios,  5  Seld.,  470. 

2.  Where  there  is  no  verdict  by  a  jury  as  in  a  case  of  non-suit  or  discontinuance,  the 
value  of  the  property  need  not  be  found.  The  value  may  be  found  by  a  jury  called  in 
an  action  on  the  undertaking. — Ginaca  v.  Ativood,  7  Cal.,  Oct.  T. 

178.  Upon  receiving  a  verdict  an  entry  shall  be  made  by  the  clerk 
in  the  minutes  of  the  court,  specifying  the  time  of  trial,  the  names  of 
the  jurors  and  witnesses,  and  the  verdict ;  and  where  a  special  verdict 
is  found,  cither  the  judgment  rendered  thereon,  or  if  the  case  be  re- 
served for  argument  or  further  consideration,  the  order  thus  reserving  it. 


CHAPTER  V. 

TRIAL   BY   THE   COURT. 

179.  Trial  by  jury  may  be  waived  by  the  several  parties  to  an 
issue  of  fact,  in  actions  arising  on  contract ;  and  with  the  assent  of  the 
court  in  other  actions,  in  the  manner  following  : 

1st.  By  failing  to  appear  at  the  trial. 

2d.  By  written  consent,  in  person  or  by  attorney,  filed  with  the 
clerk. 


§182  TRIAL    BY    REFEREES.  117 

3d.  By  oral  consent  in  open  court,  entered  in  the  minutes.  The 
court  may  prescribe  by  rule  what  shall  be  deemed  a  waiver  in  other 
cases. 

1 .  The  mere  act  of  filing  an  answer  does  not  operate  as  an  appearance  at  the  trial 
so  as  to  prevent  the  waiver  of  a  jury  trial. — Zune  v.  Croir,  4  Cal.,  112. 

2.  "Tiie  court  may  pi'escribe  by  rule,"  held  unconstitutional. — E.r line  v.  Smith,  5 
Cal.,  112. 

180.  Upon  the  trial  of  an  issue  of  fact  by  the  court,  its  decision 
shall  be  given  in  writing,  and  filed  Avith  the  clerk,  within  ten  days  after 
the  trial  took  place.  In  giving  the  decision,  the  facts  found  and  the 
conclusions  of  law,  shall  be  separately  stated.  Judgment  upon  the 
decision  shall  be  entered  accordingly^ 

1 .  The  ten  days  are  only  directory. —  Vcrmulc  v.  Slian;  4  Cal.,  214 ;  Burijer  v.  Baher, 
4  Abbott,  11. 

2.  When  the  cause  is  tried  by  a  judge  without  a  jury,  the  record  must  disclose  the 
finding  by  him  of  the  facts  and  a  statement  of  his  conclusions  of  law  upon  the  case 
without  which  there  is  no  basis  to  support  a  judgment. — Hoaglaml  v.  Clary.  2  Cal., 
474  ;  Russel  v.  Annador,  2  Cal.,  30,5 ;  Brown  v.  Brown,  3  Cal.,  Ill  ;  Estcll  v.  C/inm-i/, 
ib.,  467. 

3.  This  does  not  apply  in  ciiancery  cases. —  Walker  v.  Secliprick,  5  Cal.,  192. 

4.  A  verdict,  "That  the  facts  stated  in  tlie  plaintiff's  complaint  are  true,  and  the 
facts  stated  in  the  defendant's  answer  are  not  true,"  held  good.  The  finding  may  refer 
to  the  pleadings  if  sufficiently  distinct  to  make  it  intelligible. — McEwen  v.  Johnson,! 
Cal.,  Jan.  T. 

5.  This  decision  in  writing  should  embrace  a  distinct  determination  of  the  material 
issues  raised  by  the  pleadings.  A  mere  direction  to  enter  a  certain  judgment  is  not  a 
compliance  with  the  section. — Burger  v.  Baker,  4  Abbott,  1 1 . 

181.  On  a  judgment  upon  an  issue  of  law,  if  the  taking  of  an  ac- 
count be  necessary  to  enable  the  court  to  complete  the  judgment,  a 
reference  may  be  ordered. 


CHAPTER  VI. 

OF  REFERENCES,  AND  TRIAL  BY  REFEREES. 

182.  A  reference  may  be  ordered  upon  the  agreement  of  the  par- 
ties, filed  with  the  clerk,  or  entered  in  the  minutes  : 

1st.  To  try  any  or  all  of  the  issues  in  an  action  or  proceeding, 
whether  of  fact  or  of  law,  and  to  report  a  judgment  thereon. 


118  TRTAL    IJY    REFEREES.  §183 

2d.  To  ascertain  a  fact  necessary  to  enable  the  court  to  proceed 
and  determine  the  case. 

1 .  A  reference  cannot  I)e  made  without  consent  of  the  adverse  party. — Seaman  v.  J/«- 
rlani,  1  Cal.,  336  ;  Smith  v.  Pollock,  2  Cal.,  92;  Benham  v.  Howe,  ib.,  261. 

2.  Our  statute  concerning  referees  is  in  aid  of  common  law  remedy  by  arbitration, 
and  docs  not  alter  its  principles. —  Tyson  v.   Wells,  2  Cal.,  122. 

3.  Hearsay  and  irrelevant  testimony  should  be  excluded  by  referees. — De hi  liiin  v. 
Derreyesa,  2  Cal.,  195. 

i.     Tl"f.Tces  should  oxohulc  items  liarrcd  by  statute  of  llinitntion,  if  objected  to. — //'. 

5.  W'li-n  :m  entry  upon  the  minutes  recites  that  "  tlie  parties  came  by  their  attor- 
neys, and  (li'fc'iidant  by  his  attorney  moved  the  court  that  the  cause  be  referred  ;"  held 
tluit  su'h  reference  was  made  on  the  appellaiii'.>  iiio.loii,  :i;ul  in  one  of  the  modes  pointed 
out  bv  law,  "  by  oral  consent  in  open  court,  entered  on  the  minutes." — Bates  v.  ]'isfur, 
2  Cal.,  355. 

6.  The  above  held  not  to  apply  to  equity  cases. — SmitJi  v.  Roice,  4  Cal.,  6. 

7.  A  referee  appointed  merely  to  take  an  account  between  two  parties,  differs  mate- 
rially from  a  referee  appointed  in  the  stead  of  the  court,  to  try  and  determine  a  cause, 
and  an  order  setting  aside  his  report  is  merely  interlocutory  and  not  the  subject  of  ap- 
peal.— Johnston  v.  Dophins,  6  Cal.,  83. 

8.  Where  a  referee  admits  the  testimony  of  a  witness  against  the  olyection  of  the 
defendant,  such  testimony  cannot,  after  the  case  has  been  subir  itted,  be  thrown  out  with- 
out first  giving  to  the  adverse  party  the  opportunity  of  otherwise  supplying  the  excluded 
testimony. — Monson  v.  Cooke,  5  Cal.,  436. 

9.  Referees  have  no  power  to  allow  parties  to  alter  pleadings. — Ih.  ;  Bonesteel  v. 
Lynde,  8  How.  Pr.,  226,  352. 

10.  Although  parties  may  agree  to  a  suitable  person  for  a  referee,  the  court  must  be 
satislied  that  the  selection  is  a  proper  one. — Litchjield  v.  BurweU,  5  How.  Pr.,  341. 

1 1 .  An  order  to  refer  a  cause  brought  to  recover  upon  an  account,  is  not  an  appeal- 
able order.— Uhsdellv.  Boot,  3  Abbott,  142. 

12.  When  a  pai-ty  proceeds  to  try  a  cause  under  an  order  of  reference,  he  thereby 
waives  any  right  to  appeal  from  that  order. — Ih. 

183.  When  the  parties  do  not  consent,  the  court  may,  upon  the 
appHcation  of  either,  or  of  its  own  motion,  direct  a  reference  in  the 
following  cases : 

1st.  When  the  trial  of  an  issue  of  fact  requires  the  examination  of 
a  long  account  on  either  side  ;  in  which  case  the  referees  may  be  di- 
rected to  hear  and  decide  the  whole  issue,  or  report  upon  any  specific 
question  of  fact  involved  therein  ; 

2d.  When  the  taking  of  an  account  is  necessary  for  the  information 
of  the  court  before  judgment,  or  for  carrying  a  judgment  or  order  intc 
effect  ; 


§185  DISQIIATJFICATION    OF    REFEREES.  119 

8d.  When  a  question  of  fact,  other  than  upon  the  pleadings,  arises 
upon  motion  or  otherwise,  in  any  stage  of  the  action  ;  or, 

4th.  When  it  is  necessary  for  the  information  of  the  court  in  a  spe- 
cial proceeding. 

1.  Aption  for  balance  of  account,  defense,  payment  hy  a  promissory  note,  replica- 
tion, that  plaintiff  was  induced  to  receive  the  note  by  means  of  fraudulent  ^representa- 
tions ;  held,  that  the  ca^e  was  not  referable  under  the  statute,  without  the  written 
consent  of  both  parties. — Seaman  v.  Mariani,  1  Cal.,  336. 

2.  The  court  may  order  a  reference  to  ascertain  damages  by  an  injunction  issued 
without  a  cause. — Russell  v.  Elliott,  2  Cal.,  245. 

3.  Damages  for  unlawful  detainer  is  not  subject  to  reference,  unless  by  consent.-^ 
Geeseka  v.  Brannan,  2  Cal.,  517. 

4.  A  reference,  in  which  there  is  no  order  of  court,  or  agreement,  filed  or  entered 
on  the  minutes,  withdraws  tlie  cause  from  the  jurisdiction  of  the  court,  and  no  judgment 
can  be  entered  upon  the  report  without  consent. — Heslep  v.  Q'ti/  of  San  Frandsco,  4 
Cal.,  1. 

5.  An  order  of  reference  is  not  a  final  order  of  judgment  to  be  appealed  from. — Har- 
ris V.  Clarl;  4  How.  Pr.,  78. 

184.  A  reference  may  be  ordered  to  any  person  or  persons,  not 
exceeding  three,  agreed  upon  by  the  parties.  If  the  parties  do  not 
agree,  the  court  or  judge  shall  appoint  one  or  more  referees,  not  ex- 
ceeding three,  who  reside  in  the  county  in  which  the  action  or  proceed- 
ing is  triable,  and  against  whom  there  is  no  legal  objection. 

See  Sec.  529. 

1.  The  referees  need  not  be  sworn. — Sloan  v.  Smith,  3  Cal.,  406. 

2.  A  referee  has  no  power  to  strike  out  a  complaint,  nor  to  punish  for  contempt. — 
Bonesteel  v.  Lynde,  8  How.  Pr.,  226,  352. 

185.  Either  party  may  object  to  the  appointment  of  any  person  as 
referee,  on  one  or  more  of  the  following  grounds  : 

1st.  A  want  of  any  of  the  qualifications  prescribed  by  statute  to  ren- 
der a  person  competent  as  a  juror. 

2d.  Consanguinity  or  affinity  within  the  tliird  degree,  to  either  party. 

3d.  Standing  in  the  relation  of  guardian  and  ward,  master  and  ser- 
vant, employer  and  clerk,  or  principal  and  agent,  to  either  party  ;  or 
being  a  member  of  the  family  of  either  party  ;  or  a  partner  in  business 
with  either  party ;  or  being  security  on  any  bond  or  obligation  for 
either  party. 

4th.  Having  served  as  a  juror,  or  been  a  witness  on  any  trial  be- 
ween  the  same  parties  for  the  same  cause  of  action. 


120  TRIAL    BY    REFEREES.  §186 

5th.  Interest  on  the  part  of  such  person  in  the  event  of  the  action, 
or  in  the  main  question  involved  in  the  action. 

6th.  Having  formed  or  expressed  an  unijuaUfied  opinion  or  belief  as 
to  the  merits  of  the  action. 

7th.  The  existence  of  a  state  of  mind  in  such  person  evincing  enmity 
against,  or  bias  to,  either  party. 

186.  The  objections  taken  to  the  appointment  of  any  person  as  ref- 
eree, shall  be  heard  and  disposed  of  by  the  court.  Affidavits  may  be 
read,  and  any  [)erson  examined  as  a  witness  as  to  such  o>)jcctions. 

187.  The  referees  shall  make  their  report  within  ten  days  after  the 
testimony  before  them  is  closed.  Their  report  upon  the  whole  issue 
shall  stand  as  the  decision  of  the  court,  and  upon  filing  the  report  with 
the  clerk  of  the  court,  judgment  may  be  entered  thereon,  in  the  same 
manner  as  if  the  action  had  been  tried  by  the  court.  The  decision  of 
the  referees  may  be  excepted  to,  and  reviewed  in  like  manner  as  if 
made  by  the  court.  When  the  reference  is  to  report  the  facts,  the 
report  shall  have  the  eflfect  of  a  special  verdict. 

1 .  The  report  of  a  referee  upon  the  facts  of  a  case  will  be  considered  the  same  as 
the  verdict  of  a  jury. —  Walton  v.  Minturn,  1  Cal.,  362  ;  Goodrich  v.  The  Mai/or  of  Ma- 
ri/sville,  5  Cal.,  430. 

2.  The  report  of  a  referee  must  be  objected  to  in  a  court  below. — Porter  v.  Barlinp. 
2  Cal.,  72;   Goodrich  v.  The  Mmpr  of  Marpville,  5  C^al.,  430. 

.3.  It  must  be  taken  advantage  of  by  moving  to  set  it  aside,  as  on  motion  for  a  new 
ti-ial. — ^loan  v.  Smith,  3  Cal.,  406;    Groj/sony.  Guild,  4  Cal.,  122. 

4.  The  report  of  a  referee  should  state  the  facts  found,  and  conclusions  of  law  there- 
upon.— Lambert  v.  Smith,  3  Cal.,  408 ;  Church  v.  Erhcn,  4  Sand.,  691  ;  !'(/«  Steenhurgh 
V.  Hoffman,  6  How.  Pr.,  492  ;  Ihrninfj  v.  PoM,  1  Code  R.,  131  :  .1//7/s  v.  Thursh,/.  12 
How.  Tr.,  417. 

5.  The  report  of  a  referee  is  essentially  the  same  as  tJie  award  of  an  arbitration. — 
Grai/son  v.  Guild,  4  Cal.,  122. 

6.  The  supreme  court,  in  a  chancery  case,  will  concct  tlic  errors  of  an  eiToneous 
judgment  on  the  report  of  a  referee,  or  the  erroneous  setting  aside  of  the  same. — lb. 

7.  The  correctness  of  the  order  setting  aside  the  report  of  facts  found  by  the  referee, 
if  it  was  questioned  and  excepted  to,  can  be  reviewed  ujion  appeal  after  final  judg- 
ment.— McIIenry  v.  Moore,  5  Cal.,  90. 

8.  A  referee  taking  the  place  of  a  jury,  if  it  appear  the  i-cport  of  a  referee  upon 
questions  of  fact  has  been  aftected  by  any  influence  exercised  by  the  successful  party,  it 
will  be  set  aside  for  irregularity. —  Yule  v.  Gvinits,  4  How.  Pr..  253  ;  TJorlon  v.  Lewis, 
9  ib.,  1. 

9.  The  referee  has  no  authority  to  report  tliat  the  defoulant  is  entitled  to  judgment 


§189  EXCEPTIONS.  121 

of  a  dismissal  of  the  complaint,  nor  to  order  an  amendment  of  the  pleadings,  or  change 
the  issue  wliich  tlie  court  has  set  to  be  tried. — Holmes  v.  Shewn,  6  ib.,  217. 

10.  The  examination  by  the  court  of  a  report  in  reference. — Lakin  v.  New  York  and 
Erie  R.  R.  Co.,  11  ib.,  412. 

1 1 .  When  a  new  trial  is  granted  from  a  judgment  in  the  report  of  a  referee,  the  case 
should  be  tried  before  a  new  referee. — Schermerhorn  v.  Van  Alen,  13  ib.,  82. 

12.  The  manner  in  which  decisions  of  referees  should  be  excepted  to  and  reviewed, 
fully  discussed. — Johnson  v.  Whithch,  3  Kern.,  344. 

13.  The  court,  under  section  68,  may  allow  exceptions  to  the  report  of  a  referee  to 
be  filed  nunc  pro  tunc.,  after  the  time  allowed. — Sheldon  v.  Wood,  14  ib.,  18. 


CHAPTER  VII. 

GENERAL   PROVISIONS    RELATING   TO   TRIALS. 

ARTICLE   I. 

EXCEPTIONS. 

188.  An  exception  is  an  objection  taken  at  the  trial  to  a  decision 
upon  a  matter  of  law,  whether  such  trial  be  bj  jury,  court,  or  referees, 
and  whether  the  decision  be  made  during  the  formation  of  a  jury,  or 
in  the  admission  of  evidence,  or  in  the  charge  to  a  jury,  or  at  any  other , 
time  from  the  calling  of  the  action  for  trial,  to  the  rendering  of  the 
verdict  or  decision.  But  no  exception  shall  be  regarded  on  a  motion 
for  a  new  trial,  or  on  an  appeal,  unless  the  exception  be  material,  and 
affect  the  substantial  rights  of  the  parties. 

1.  "Where  the  court  below  tries  the  cause  without  a  jury,  the  proper  mode  of  re- 
serving questions  of  law,  is  to  ask  the  court  to  decide  them,  an<i  note  the  refusal  in  a 
bill  of  exceptions. —  Grisivold  v.  Sharpe,  2  Cal.,  17. 

2.  An  objection  that  the  case  made  by  the  evidence  varies  from  that  stated  in  the 
complaint,  cannot  prevail  on  a  review  unless  it  was  made  at  the  trial. — Barnes  v.  Per- 
me,2  Kern.,  18. 

3.  In  chancery  cases  the  jury  trial  is  but  advisory,  and  improper  testimony  and  er- 
roneous instructions  work  no  injury,  if  justice  has  been  rendered  by  the  court. — Still  v. 
SitundeTs,  7  Cal.,  Oct.  T. 

189.  The  point  of  the  exception  shall  be  particularly  stated,  and 
may  be  delivered  in  writing  to  the  jtidge  ;  or,  if  the  party  re(j[uire  it, 
shall  be  Avritten  down  by  the  clerk.  When  dehvered  in  Avriting,  or 
written  down  by  the  clerk,  it  shall  be  made  conformable  to  the  truth, 

or  be  at  the  time  corrected,  until  it  is  so  made  conformable.     When 
I 


122  NEW    TRIALS.  §190 

not  delivered  in  Avriting,  or  written  down  as  above,  it  may  be  entered 
in  tlie  judge's  minutes,  and  afterwards  settled  in  a  statement  of  the 
case,  as  provided  in  this  act. 

1.  A  mere  transcript  of  the  evidence  taken  down  by  the  clerk  is  no  part  of  the  rec- 
ord, unless  made  so  by  bill  of  exceptions. —  Wilson  v.  Middleton,  2  Cal.,  54. 

2.  Where,  under  the  271st  [663]  section  of  the  act  to  re<;ulate  proceedings  in  civil 
cases,  the  evidence  is  taken  down  by  the  clerk  in  the  court  below,  on  motionof  a  party, 
a  transcript  of  it  certified  by  him,  is  a  substitute  for  a  bill  of  exceptions,  or  statement  of 
facts,  in  the  absence  of  such  bill  or  statement.  Decisions  contravening  the  plain  letter 
of  the  statute  are  not  binding  as  authority. — Ingrahamv.  GUdermester,2  Cal.,  161. 

3.  Documents  and  affidavits,  to  be  reviewed  by  the  appellate  court,  must  be  embod- 
ied in  the  bill  of  exceptions  or  record. —  Gates  v.  Buckiiifjham,  4  Cal.,  286  ;  Moore  v.  Sem- 
ple,  8  Cal.,  April  T. ;  Hitter  v.  Mason,  ib. 

4.  Objections  to  the  introduction  of  evidence  must  be  taken  on  the  trial  below. — 
Covillaudv.  Tanner,  7  Cal.,  Jan.  T. 

5.  The  objections  to  the  form  of  a  deed  must  be  made  on  the  trial  at  nisi  prius. — 
Posten  V.  Rassette,  5  Cal.,  468  ;  Letter  v.  Mclntyre,  7  "Cal.,  April  T. 

6.  Exceptions  which  appear  as  settled  in  the  case,  will,  on  appeal,  be  assumed  to 
have  been  duly  taken. — Uunt  v.  Bloomer,  3  Kern,  342. 

190.  No  particular  form  of  exception  shall  be  required.  The  ob- 
jection shall  be  stated,  with  so  much  of  the  evidence  or  other  matter, 
as  is  necessary  to  explaui  it,  but  no  more  ;  and  the  whole  as  briefly  as 
possible. 

1.  Wiiere  an  exception  is  taken  to  the  decision  of  a  court  refusing  a  non-suit,  it  de- 
volves on  the  plaintitf,  on  the  settlement  of  tlie  bill,  to  see  that  all  the  evidence  material 
for  him  in  sustaining  the  decisions  complained  of,  is  inserted  in  the  bill  of  exceptions. — 
Eimjc/oldv.Hai-cn,  1  Cal.,  108. 

191.  When  a  cause  has  been  tried  by  the  cotirt,  or  by  referees, 
and  the  decision  or  report  is  not  made  immediately  after  the  closmg  of 
the  testimony,  the  decision  or  report  shall  be  deemed  excepted  to,  on 
a  motion  for  a  new  trial,  or  on  appeal,  without  any  special  notice  that 
an  exception  is  taken  thereto. 


ARTICLE   II. 

NEW   TRIALS. 

192.     A  new  trial  is  a  re-examination  of  an  issue  of  fact  in  the  same 
court,  after  a  trial  and  decision  by  a  jury,  court,  or  referees. 

1.     A  new  trial  should  not  be  granted  where  it  is  apparent  the  verdict  of  the  jury 


§193  NEW    TRIALS.  123 

would  lie  the  same. —  Tohlerw  Folsom,  1  Cal.,  207  ;    Bnrhrlnv  v.  Chipman,  5  Cal.,  S99, 

2.  A  new  trial  should  be  granted  where  justice  requires  it. — Boss  v.  Austill,  2  Cal., 
183  ;  Bartktt  v.  Hogden,  3  Cal.,  55  ;  Uojit.  v.  Sniimhrx,  4  Cal.,  345  ;  Plnlhnm  v.  McFar- 
hnd,  5  Cal.,  137. 

3.  The  power  to  grant  new  trials  is  one  of  legal  discretion ;  the  abuse  of  it  will  only 
justify  interference,  by  an  appellate  court. — Drake  v.  Pahim;  2  Cal.,  177;  Eartkit  v. 
lloijdet),  3  Cal.,  55  ;  Speck  v.  Ifoi/t,  3  Cal.,  413  ;  Taiflorv.  McKinIeij,4  Ca].,  104  ;  Wat- 
son V.  McChuj,  4  Cal.,  288  ;  Duellv.  Bear  River  Co.,  5  Cal.,  84  ;  Wood  v.  FoLes,  5  Cal., 
62  ;    Wilson  v.  Berryman,  5  Cal.,  44. 

4.  The  court  maj'  impose  terms  upon  granting  a  new  trial. — BaUelle  v.  Connor,  6 
Cal.,  140. 

5.  Wlien  a  motion  for  a  new  trial  should  be  made  prior  to  appeal. — Brown  v.  Tolles, 
7  Cal.,  April  T. ;  Deireij  v.  Bowman,  ib.,  July  T. 

193.  The  former  verdict  or  other  decision  raaj  be  vacated,  and  a 
new  trial  granted,  on  the  apjiUcation  of  the  party  aggrieved,  for  any  of 
the  following  causes  materially  affecting  the  substantial  rights  of  such 
party  : 

1st.  Irregularity  in  the  proceedings  of  the  court,  jury,  or  adverse 
party,  or  any  order  of  the  court,  or  abuse  of  discretion  by  which  either 
party  was  prevented  from  having  a  fair  trial. 

2d.  Misconduct  of  the  jury. 

3d.  Accident  or  surprise,  which  ordinary  prudence  could  not  have 
guarded  against. 

4th.  Newly  discovered  evidence,  material  for  the  party  making  the 
application,  which  he  could  not,  with  reasonable  diUgence,  have  dis- 
covered and  produced  at  the  trial. 

5th.  Excessive  damages,  appearing  to  have  been  given  under  the 
influence  of  passion  or  prejudice. 

6th.  Insufficiency  of  the  evidence  to  justify  the  verdict,  or  other  de- 
cision, or  that  it  is  again.st  law. 

7th.  Error  in  Lnv,  occurring  at  the  trial,  and  excepted  to  by  the 
party  making  the  application. 

1 .  If  improper  evidence  be  permitted  to  be  given  to  a  jury,  a  new  trial  will  be  grant- 
ed, unless  tiie  court  can  see  that  such  evidence  could  have  had  no  influence  ujjon  the 
verdict. — Santillun  v.  Moses,  1  Cal.,  92. 

2.  When  a  new  trial  is  granted  from  a  judgment  on  the  report  of  a  referee,  the  case 
should  l)e  tried  before  a  new  referee. — Sc/nmier/wrn  v.  ^'anAlnl,  13  How.  Pr.,  82. 

3.  Where,  on  appeal,  the  complaint  is  so  radically  defective  as  not  to  authorize  the 
judgment  of  the  court  below,  a  new  trial  may  be  granted,  with  leave  to  the  i)]aintitf  to 


124  XEW    TRIALS.  §191 

amend  his  comphiiut  on  sucli  terms  as  the  court  below  may  deem  just. — Sterling  r.  Han- 
son,  1  Cal.,  478. 

4.  3d.  Where  suqirise  is  set  up  liy  non-attendance  of  witness,  reasonable  dilifrcnce 
must  be  shown. — Rogers  v.  Jliiie,  1  Cal.,  429  ;  Burtlett  v.  Hogden,  3  Cal.,  55  ;  Brooks  v. 
Lyon,  3  Cal.,  113. 

5.  Surprise  may  be  ground  for  a  new  trial  in  case  of  non-suit. — Tai/hr  v.  Frost,  2 
How.  Pr.,  214. 

6.  Surprise  requires  a  continuance. — Ross  v.  Austill,  2  Cal.,  183. 

7.  4th.  The  newly  discovered  evidence  should  be  set  forth  in  full,  on  motion. — Per- 
ry \.  Cochran,  1  Cal.,  180;  Burrittv.  Gibson,  3  Cal.,  396. 

8.  The  newly  discovered  evidence  must  appear  to  be  incontrovertible  and  conclu- 
sive.— Bartlettw.  Iloijden,  3  Cal.,  55;  Btickelewv.  Chipman,  5  Cal.,  399. 

9.  The  new  evidence  must  not  be  merely  cumulative. —  Gaven  v.  Dopman,  5  Cal., 
342  ;  Taylor  v.  Ckil.  Stage  Co.,  G  Cal.,  228. 

10.  A  new  trial  will  not  be  granted  if  such  evidence  was  within  reach,  and  by  ordi- 
nary diligence  migiit  have  been  procured. — People  \.  Marks,  10  How.  Pr.,  261 ;  Berry 
V.  Metzler,  7  Cal.,  April  T. 

11.  5th.  Payne  v.  Parijic  M.  S.  S.  Co.,  1  Cal.,  33;  George  v.  Law,  1  Cal.,  363; 
Potter  V Seale,  5  Cal.,  410;  Blumv.  Higgijis,  3  Abbott,  104. 

12.  6th.  A  new  trial  will  be  granted  where  the  verdict  is  tlie  result  of  mistake  or 
prejudice. — Bagley  v.  Eaton,  7  Cal.,  July  T. 

13.  The  mere  fact  that  the  plaintiff's  counsel  read,  in  his  address  to  the  jury,  a  por- 
tion of  an  answer  which  had  been  stricken  out,  is  not  error  of  itself.  Errors  cannot  be 
relied  on,  in  an  appellate  court,  which  are  not  taken  advantage  of  and  raised  in  the 
court  below. — Morgan  v.  IJagg,  5  Cal.,  409. 

19-1.  When  the  application  is  made  for  a  cause  mentioned  in  the 
first,  second,  third,  and  fourth  subdivisions  of  the  last  section,  it  shall 
be  made  upon  affidavit ;  for  any  other  cause  it  shall  be  made  upon  a 
statement  prepared  as  provided  in  the  next  section. 

195.  The  party  intending  to  move  for  a  new  trial  shall  give  notice 
of  the  same  Avithin  two  days  after  the  trial,  and  shall,  within  five  days 
after  such  notice,  prepare  and  file  with  the  clerk  the  affidavit  required 
by  the  last  section,  or  a  statement  of  the  grounds  upon  which  he  in- 
tends to  rely.  If  no  affidavit  or  statement  be  filed  within  five  days 
after  the  notice,  the  right  to  move  for  a  new  trial  shall  be  deemed 
waived.  The  statement  shall  contain  so  much  of  the  evidence,  or  ref- 
erence thei-eto,  as  may  be  necessary  to  explahi  the  grounds  taken,  and 
no  more.  Such  statement,  when  containing  any  portion  of  the  evidence 
of  the  case,  and  not  agreed  to  by  the  adverse  party,  shall  be  settled  by 
the  judge  upon  notice.  On  the  argument  reference  may  also  be  made 
to  the  pleadings,  depositions,  and  documentary  evidence  on  file,  and  to 


§197  ,„  ENTERING   JUDGMENT.  125 

the  minutes  of  the  court.  If  the  application  be  made  upon  affidavits 
filed,  the  adverse  party  may  use  counter  affidavits  on  tho  hearing. 
Any  counter  affidavits  shall  be  filed  with  the  clerk  one  day,  at  least, 
previous  to  the  hearing. 

1.  A  motion  for  a  new  trial  must  be  noticed  within  statute  time. — Elliott  v.  Osborne, 
1  Cal.,  396  ;  Iknnison  v.  Smith,  ib.,  437  ;   C'anei/  v.  Silrerthoni,  8  Cal.,  Jan.  T. 

2.  If  no  statement  be  filed  the  order  will  be  set  aside. — Leech  v.  Alloi,  2  Cal.,  95  ; 
Billy.  White,  2  Cal.,  306. 

3.  The  statement  must  be  agreed  to  or  signed  by  the  judge. — Linn  v.  Tirist,  3  Cal., 
89  ;  Ilarh'i/v.  Young,  4  Cal.,  284  ;  Survei/v.  Wells,  5  Cal.,  124. 

4.  A  motion  for  a  new  trial  stays  the  operation  of  the  judgment  until  it  can  be  heard 
and  determined,  and  is  not  aftected  by  the  adjournment  of  the  court. — Liirveij  v.  Wells, 
4  Cal.,  106. 

5.  The  court  may  impose  terms  in  granting  or  refusing  a  new  trial. — Benedict  v. 
Cozzens,  4  Cal.,  381 ;  Battellev.  Connor,  6  Cal.,  140. 

6.  The  court  may  extend  the  time  for  filing  the  statement. —  Wood  v.  Fobes,  5 
Cal.,  62. 

7.  An  irregularity  in  the  notice  is  waived  by  the  act  of  filing  a  counter  statement. — 
Williams  v.  Gregory,  8  Cal.,  Jan.  T. 

196.     The  application  for  a  new  trial  shall  be  made  at  the  earliest 
period  practicable  after  filing  the  affidavit  or  statement. 

See  Sec.  25.,  p.  15. 

1.     Baldwin  V.  Kramer,  2  Cal,,  582. 


CHAPTER  VIII. 

THE   MANNER   OF   GIVING  AND   ENTERING  JUDGMENT. 

197.  When  trial  by  jury  has  been  had,  judgment  shall  be  entered 
by  the  clerk,  in  conformity  to  the  verdict,  within  twenty-four  hours 
after  the  rendition  of  the  verdict,  unless  the  court  order  the  case  to  be 
reserved  for  argument;,  or  further  consideration,  or  grant  a  stay  of 
proceedings. 

1.  The  district  court  may  at  any  time  thereafter  grant  relief  against  a  judgment  un- 
justly or  improperly  obtained. — Bidleman  v.  Kewen,  2  Cal.,  248 ;  People  v.  Lafarge,  3 
Cal.,  130. 

2.  A  court  may  at  any  time  render  or  amend  a  judgment  nunc  pro  tunc  where  the 
record  discloses  that  it  is  incorrectly  given  as  the  judgment  of  the  court. — Morrison  v. 
Dapmnn,  3  Cal.,  255. 

3.  But  if  there  is  record  evidence  to  show  that  the  judgment  was  different  from  the 
one  entered,  the  latter  must  stand  until  reversed. — Ib. 


12(3  ENTERING   JUDGMENT.  §198 

4.  No  court  will  be  permitted,  after  the  lapse  of  a  term,  to  open  a  judgment  upon 
motion  to  render  a  new  judgment. — lb.     See  Sec.  144. 

198.  [1854.]  When  the  case  is  reserved  for  argument,  or  further 
consideration,  as  mentioned  in  the  last  section,  it  may  be  brought  by 
either  party  before  the  court  for  argument. 

199.  If  a  counter  claim,  established  at  the  trial,  exceed  the  plain- 
tiff's demand,  so  established,  judgment  for  the  defendant  shall  be  given 
for  the  excess ;  or  if  it  appear  that  the  defendant  is  entitled  to  any 
other  affirmative  relief,  judgment  shall  be  given  accordingly. 

200.  In  an  action  to  recover  the  possession  of  personal  property, 
judgment  for  the  plaintiff  may  be  for  the  possession,  or  the  value  thereof, 
in  case  a  delivery  cannot  be  had,  and  damages  for  the  detention.  If 
the  projjerty  have  been  delivered  to  the  plaintiflF,  and  the  defendant 
claim  a  return  thereof,  judgment  for  the  defendant  may  be  for  a  re- 
turn of  the  property,  or  the  value  thereof  in  case  a  return  cannot  be 
had,  and  damages  for  taking  and  withholding  the  same. 

1 .  The  damages  in  this  case  when  the  property  has  been  delivered,  is  the  legal  in- 
terest on  tlic  value  thereof  during  the  detention. — Nic/cerson  v.  Clialterlon,  7  Cal.,  April 
T. ;  Douglass  v.  Kraft,  8  Cal.  April  T. 

2.  This  judgment  must  be  in  the  alternative  or  the  bond  is  not  liable. — Xickerson  v. 
Chalterton,  7  Cal.,  April  T.;    Chambers  v.  Waters,  ib. 

201.  The  clerk  shall  keep  among  the  records  of  the  court,  a  book 
for  the  entry  of  judgments,  to  be  called  the  "  Judgment  Book,"  in 
which  each  judgment  shall  be  entered,  and  shall  specify  clearly  the 
relief  granted,  or  other  determination  of  the  action. 

202.  If  a  party  die  after  a  verdict  or  decision  upon  any  issue  of 
fact,  and  before  judgment,  the  court  may  nevertheless  render  judg- 
ment thereon.  Such  judgment  shall  not  be  a  lien  on  the  real  property 
of  the  deceased  party,  but  shall  be  payable  in  the  course  of  adminis- 
tration on  his  estate. 

203.  Immediately  after  entering  the  judgment,  the  clerk  shall 
attach  together  and  file  the  following  papers,  which  shall  constitute 
the  judgment  roll : 

1st.  In  case  the  complaint  be  not  answered  by  any  defendant,  the 


§205  JUDGMENT  DOCKET.  127 

summons,  with  the  affidavit  or  proof  of  service,  and  the  complaint, 
with  a  memorandum  endorsed  on  the  complaint,  that  the  default  of  the 
defendant  in  not  answering  was  entered,  and  a  copy  of  the  judgment. 
2d.  In  all  other  cases,  the  summons,  pleadings,  and  a  copy  of  the 
judgment,  and  any  orders  relating  to  a  change  of  the  parties. 

1.  The  mode  of  entering  tlic  judgment  and  making  up  and'filing  the  judgment  roll, 
are  not  to  be  considered  imperative,  but  merely  directory. — Stimton  v.  IIiu/(jins,  9  How. 
Tr.,  86. 

2.  It  should  be  made  to  appear  that  the  judgment  has  been  rendered  by  a  court 
which  has  jurisdiction  of  the  proceedings,  and  when  issues  have  been  joined,  that  those 
issues  have  been  tried  in  some  manner  prescribed  by  law  so  as  to  authorize  the  judgment. 
Thomas  v.  Tanner,  14  ib.,  426. 

204.  Immediately  after  filing  a  judgment  roll,  the  clerk  shall  make 
the  proper  entries  of  the  judgment,  under  appropriate  heads,  in  the 
docket  kept  by  him;  and  from  the  time  the  judgment  is  docketed,  it 
shall  become  a  lien  upon  all  the  real  property  of  the  judgment  debtor, 
not  exempt  from  execution,  in  the  county,  OAvned  by  him  at  the  time, 
or  which  he  may  afterwards  acquire,  until  the  said  lien  expires.  The 
lien  shall  continue  for  two  years,  unless  the  judgment  hi  previously 
satisfied.  ... -^■'••'   ^v' 

1.  The  liens  of  judgment  creditors,  if  the  land  be  sold  on  a  prior  judgment,  are 
transferred  to  the  surplus,  which  must  be  applied  to  them,  in  their  order  of  priority. — 
Ai'erill  V.  LoucJcs,  6  Barb.,  470. 

2.  The  lien  shall  continue  from  the  entry  of  the  judgment  for  two  years,  and  if  an  ap- 
peal be  taken,  the  two  years  will  run  anew  from  the  date  of  filing  the  remittitur. — Dewey 
V.  Latson,  6  Cal.,  130. 

3.  The  lien  of  a  judgment  is  a  question  of  time,  depending  on  the  day  and  hour  when 
the  judgment  was  docketed. — Blydenburgh  v.  Northrop,  13  How.  Pr.,  289. 

205.  The  docket  mentioned  in  the  last  section,  is  a  book  which 
the  clerk  shall  keep  in  his  oflice,  with  each  page  divided  into  eight 
columns,  and  headed  as  follows :  judgment  debtors  ;  judgment  credit- 
ors ;  judgment ;  time  of  entry  ;  where  entered  in  judgment  book  ;  ap- 
peals, when  taken  ;  judgment  of  appellate  court ;  satisfaction  of  judg- 
ment, when  entered.  If  judgment  be  for  the  recovery  of  money  or 
damages,  the  amount  shall  be  stated  in  the  docket  under  the  head  of 
judgment ;  if  the  judgment  be  for  any  other  relief,  a  memorandum  of 
the  general  character  of  the  relief  granted  shall  be  stated.  The  names 
of  the  defendants  shall  be  entered  in  the  docket  in  alphabetical  order. 


128  JUDGMENT  DOCKET.  §206 

206.  The  docket  kept  by  the  clerk  shall  be  open  at  all  times 
during  office  hours,  for  the  inspection  of  the  pubUc,  without  charge  ; 
and  it  shall  be  the  duty  of  the  clerk  to  arrange  the  several  dockets 
kept  by  him,  in  such  a  manner  as  to  facilitate  their  inspection. 

207.  A  transcript  of  the  original  docket  certified  by  the  clerk,  may 
be  filed  with  the  recorder  of  any  other  county,  and  from  the  time  of 
the  filing,  the  judgment  shall  become  a  hen  upon  all  the  real  property 
of  the  judgment  debtor  not  exempt  from  execution  in  such  county, 
owned  by  him  at  the  time,  or  which  he  may  afterwards  actjuire,  until 
the  said  lien  expires.  The  lien  shall  continue  for  two  years,  unless 
the  judgment  be  previously  satisfied. 

See  sec.  237. 

1.  To  make  the  lien  effectual  the  execution  must  not  only  be  issued,  but  the  sale 
must  take  place  within  the  two  years. — Little  v.  Harvey,  9  Wend.,  157  ;  Graff  y.  Kip,  1 
Edw.  Ch.R.,  619. 

208.  Satisfaction  of  a  judgment  may  bo  entered  in  the  clerk's 
docket  upon  an  execution  returned  satisfied,  or  upon  an  acknowledg- 
ment of  satisfaction  filed  with  the  clerk,  made  in  the  manner  of  an 
acknowledgment  of  a  conveyance  of  real  property,  by  the  judgment 
creditor,  or  within  one  year  after  the  judgment,  by  the  attorney,  iinless 
a  revocation  of  his  authority  be  previously  filed.  "Whenever  a  judg- 
ment shall  be  satisfied  in  fact,  otherwise  than  upon  an  execution,  it 
shall  be  the  duty  of  the  party,  or  attorney,  to  give  such  acknowledg- 
ment, and  upon  motion  the  court  may  compel  it,  or  may  order  the 
entry  of  satisfaction  to  be  made  without  it. 


§210  EXECUTION.  129 


TITLE    VII. 

OF   THE   EXECUTION   OF   THE    JUDGMENT   IN    CIVIL   ACTIONS. 

CHAPTER  I. 

THE   EXECUTION. 

209.  The  party  in  Avliose  favor  judgment  is  given,  may,  at  any- 
time witliin  five  years  after  the  entry  thereof,  issue  a  writ  of  execution 
for  its  enforcement,  as  prescribed  in  this  chapter. 

See  See.  214. 

210.  The  writ  of  execution  shall  be  issued  in  the  name  of  the 
people,  sealed  with  the  seal  of  the  court,  and  subscribed  by  the  clerk, 
and  shall  be  directed  to  the  sheriff,  and  shall  intelligibly  refer  to  the 
judgment,  stating  the  court,  the  county,  where  the  judgment  roll  is 
filed,  the  names  of  the  parties,  the  judgment,  and  if  it  be  for  money, 
the  amount  thereof,  and  the  amount  actually  due  thereon,  and  shall 
require  the  sheriff  substantially  as  follows  : 

1st.  If  it  be  against  the  property  of  the  judgment  debtor,  it  shall 
require  the  sheriff  to  satisfy  the  judgment,  with  interest,  out  of  the 
personal  property  of  such  debtor,  and  if  sufficient  personal  property 
cannot  be  found,  then  out  of  his  real  property  ;  or  if  the  judgment  be 
a  lien  upon  real  property,  then  out  of  the  real  property  belonging 
to  him  on  the  day  when  the  judgment  was  docketed,  or  if  the  exe- 
cution be  issued  to  a  county  other  than  the  one  in  which  the  judg- 
ment was  recovered,  on  the  day  when  the  transcript  of  the  docket  was 
filed  in  the  ofiice  of  the  recorder  of  such  county,  stating  such  day,  or 
at  any  time  thereafter. 

2d.  If  it  be  against  real  or  personal  property,  in  the  hands  of  the 
personal  representatives,  heirs,  devisees,  legatees,  tenants  of  real 
property,  or  trustees,  it  shall  require  the  sheriff  to  satisfy  the  judg- 
ment, with  interest,  out  of  such  property. 

3d.  If  it  be  against  the  person  of  the  judgment  debtor,  it  shall  re- 
quire the  sheriff  to  arrest  such  debtor,  and  commit  him  to  the  jail  of 


130  EXECUTIOX.  §211 

the  county  until  he  pay  the  judgment,  Avlth  interest,  or  be  discharged 
according  to  law. 

4tli.  If  it  be  for  the  delivery  of  the  possession  of  real  or  personal 
property,  it  shall  recpiirc  the  sheriff  to  deliver  the  possession  of  the 
same,  particularly  dcsci-ibing  it,  to  the  party  entitled  thereto,  and  may 
at  the  same  time  require  the  sheriff  to  satisfy  any  costs,  damages, 
rents,  or  profits,  recovered  by  the  same  judgment,  out  of  the  personal 
property  of  the  party  against  whom  it  was  rendered,  and  the  value  of 
the  property  for  which  the  judgment  was  recovered,  to  be  specified 
therein,  if  a  delivery  thereof  cannot  be  had ;  and  if  sufficient  personal 
property  cannot  be  found,  then  out  of  real  property,  as  providecl  in 
the  first  subdivision  of  tliis  section. 

1.  Tlie  slicriffi.s  not  re(iiiire(l  al)solute]y  to  levy  first  on  ])crsonal  property  ;  tliis  provi- 
sion is  merely  directory  ;  so  where  the  hind  of  a  defendant  was  mortf^aged  and  sold  under 
an  execution,  and  the  mortj;a<ree  failed  to  redeem  within  statute  time,  thou<j:Ii  the  judg- 
ment dehtor  had  ample  personal  property  to  satisfy  the  judgment,  yet  the  sale  will  not  be 
set  aside  as  void,  nor  will  the  mortgagee  be  allowed  to  redeem. — jSmitk  v.  Randall,  6 
Cal.,  47. 

2.  Things  in  action  are  such  property  as  may  be  levied  upon  on  execution. — ^iflains 
T.  Ilackett,  7  Cal.,  January  T.;  Johnson  v.  Reynolds,  ib. 

3.  A  levy  under  an  execution  on  property  sufficient  to  satisfy  the  same,  is  a  satisfac- 
tion of  the  judgment. — People  v.  Chishohn,  7  Cal.,  July  T. 

4.  The  property  in  replevin  is  required  to  be  particularly  described  in  the  execution. 
The  sheriff  is  commanded  to  deliver  the  particular  property;  there  is  no  reservation 
in  favor  of  innocent  purchasers. — Hunt  v.  Robinson,  7  Cal.,  Oct.  T. 

5.  A  sheriff  cannot  levy  upon  money  in  liis  own  hands  belonging  to  the  judgment 
debtor,  when  he  has  received  the  money  on  an  execution  in  favor  of  this  debtor. — C'/y- 
Tner  v.  lJ7///s,  3  Cal.,  363;  Turner  v.  Fendall,  1  Cranch,  117;  Muscott  v.  Woola-orth,  14 
How.  Pr.,  477. 

211.  AVhen  a  writ  of  execution  is  issued  on  a  judgment  recovered 
against  two  or  more  persons,  in  an  action  upon  a  joint  contract,  in 
which  action  all  the  defendants  were  not  served  Avith  suuunons,  or  did 
not  appear,  it  shall  direct  the  sheriff  to  satisfy  the  judgment  out  of  the 
joint  property  of  all  the  defendants  and  the  individual  property 
only  of  the  defendants  who  were  served,  or  who  api)carod  in  the  ac- 
tion. In  otlier  respects,  the  writ  shall  contain  the  directions  speci- 
fied in  the  first  subdivision  of  the  last  section. 

212.  The  execution  may  be  made  returnable  at  any  time,  not  less 
than  ten,  nor  more  than  sixty  days  after  its  receipt  by  the  sheriff,  to 
the  clerk  with  whom  the  judgment  roll  is  filed. 


^216  EXECUTION.  131 

1.  Executions  need  not,  to  be  valid,  state  the  time  or  place  of  their  return. — Fake  \. 
Edgerton,  5  Duer,  681. 

213.  Where  a  judgment  requires  the  payment  of  money,  or  the 
dehvery  of  real  or  personal  property,  the  same  shall  be  enforced  in 
those  respects,  by  execution.  Where  it  requires  the  performance  of 
any  other  act,  a  certified  copy  of  the  judgment  may  be  served  upon 
the  party  against  whom  it  is  given,  or  upon  the  person  or  officer  who  is 
reijuired  tlicrel)y,  or  by  law,  to  obey  the  same,  and  his  obedience 
thereto  enforced. 

214.  After  the  lapse  of  five  years  from  the  entry  of  judgment,  an 
execution  shall  be  issued  only  by  leave  of  the  court  on  motion.  Such 
leave  shall  not  be  given,  unless  it  be  established  by  the  oath  of  the 
party  or  other  proof,  that  the  judgment,  or  some  part  thereof,  remains 
unsatisfied  and  due. 

1.  This  provision  sustained. — ILiIbiif  v.  Fiillci\  3  Code  R.,  55  ;  Ctirrie  v.  Aoyes,  1 
Code  R.,  N.  S.,  198  ;  Irwin  v.  Muir,  4  Abbott,  133. 

2.  Where  a  judojment  remains  unpaid  more  than  five  years,  and  after  its  recovery, 
the  defendant  obtained  a  discharge  in  insolvency  whicli  was  afterwards  adjudged  void, 
held  that  the  plaintiff  should  have  leave  to  issue  execution  on  the  judgment. — Small  v. 
Wheaton,  2  Abbott,  316. 

3.  Where  an  execution  has  been  issued  within  five  years  from  the  entry  of  judgment, 
the  party  may  issue  execution  at  any  time  thereafter  without  application  to  the  court. — 
Pierce  v.  Craine,  4  How.  Pr.,  257  ;  McSmith  v.  Mcin  Deusen,  9  ib.,  245  ;  Kress  v.  Ellis, 
14  ib.,  392. 

4.  In  this  application  the  court  will  not  entertain  an  objection  to  the  validity  of  the 
judgment. — Zee  v.  Walkins,  13  ib.,  178. 

5.  A  second  execution  can  not  issue  in  any  case  without  leave  of  the  court,  on  notice 
to  the  defendant,  after  a  lapse  of  five  years. — Sacia  v.  Nestle,  13  How.  Pr.,  572. 

215.  Notwithstanding  the  death  of  a  party  after  the  judgment,  ex- 
ecution thereon  against  his  property  may,  upon  permission  granted  by 
the  probate  court,  be  issued  and  executed  in  the  same  manner,  and 
with  the  same  effect,  as  if  he  Avere  still  living. 

216.  Where  the  execution  is  against  the  property  of  the  judgment 
debtor,  it  may  be  issued  to  the  sheriff  of  any  county  in  the  state. 
Where  it  requires  the  dehvery  of  real  or  personal  property,  it  shall  be 
issued  to  the  sheriff  of  the  county  where  the  property,  or  some  part 
thereof,  is  situated.  Executions  may  be  issued,  at  the  same  time,  to 
different  counties. 


132  EXECUTIOX,  §217 

217.  [1854.]  All  goods,  chattels,  moneys,  and  other  property, 
real  and  personal,  of  the  judgment  debtor,  not  exempt  by  law,  and  all 
property  and  rights  of  property,  seized  and  held  under  attachment  in 
the  action,  shall  be  liable  to  execution. 

Until  a  levy,  property  shall  not  be  affected  by  the  execution. 

Shares  and  interests  in  any  corporation  or  company,  and  debts  and 
credits  and  other  property  not  capable  of  manual  delivery,  may  be 
attached  on  execution  in  like  manner  as  upon  writs  of  attachment. 

Gold  dust  shall  be  returned  by  the  officer  as  so  much  money  collect- 
ed, at  its  current  value,  without  exposing  the  same  to  sale. 

1.  An  execution  affects  property  only  from  the  time  of  levy. — Johnson  v.  Gorham, 
6Cal.,  195.      • 

2.  Service  of  a  copy  of  execution,  and  notice  of  garnishment  upon  a  third  party, 
constitutes  no  lien  on  property  of  the  debtor  in  his  hands. — Ih. 

3.  The  levy  on  personal  property  must  be  made  by  taking  the  property  into  custo- 
dy.— Dutertre  v.  Duirard,  7  Cal.,  April  T. 

218.  If  the  property  levied  on,  be  claimed  by  a  third  person  as 
his  property,  the  sheriff  shall  summon  from  his  county  six  persons 
qualified  as  jurors,  between  the  parties  to  try  the  validity  of  the  claim. 
He  shall  also  give  notice  of  the  claim  and  of  the  time  of  trial  to  the 
plaintiff,  who  may  appear  and  contest  the  claim  before  the  jury.  The 
jury  and  the  witnesses  shall  be  sworn  by  the  sheriff,  and  if  their  verdict 
be  in  favor  of  the  claimant,  the  sheriff  may  relinquish  the  le\y,  unless 
the  judgment  creditor  give  him  a  sufficient  indemnity  for  proceeding 
thereon.  The  fees  of  the  jury,  the  sheriff,  and  the  witnesses,  shall  be 
paid  by  the  claimant,  if  the  verdict  be  against  him  ;  otherwise  by  the 
plaintiff.  On  the  trial  the  defendant  and  the  claimant  may  be  exam- 
ined by  the  plaintiff  as  witnesses. 

1.  In  a  suit  against  the  sheriff  for  not  levying  the  execution,  if  the  sheriff  i)rovc  a 
trial  by  jury  and  verdict  for  claimant,  the  plaintiff  must  show  that  he  tendered  the  bond 
of  indemnity  to  the  sheriff,  required  by  law. — Strong  v.  Patterson,  6  Cal.,  156. 

2.  An  officer  taking  goods  under  civil  process  is  entitled  to  notice  of  the  claim  of  a 
third  party  to  the  goods,  and  a  demand  for  them,  to  be  liable  for  damages. — Taijlor  v. 
Seymour,  6  Cal.,  512;  Daumiel  v.  Gorham,  ib.,  43. 

3.  If  several  creditors  levy,  and  tliosc  prior  fail  to  indemnify  the  sheriff,  he  should 
relinquish  the  levy  of  such,  and  proceed  only  for  the  benefit  of  tliose  wiio  indemnify, 
and  incur  the  responsibility. — Davidson  v.  Dallas,  7  Cal.,  Oct.  T. 

4.  A  bond  of  indemnity  given  to  the  sheriff,  upon  execution,  is  not  invalidated  by 
the  fact  that  it  was  given  after  levy  and  sale. —  Westervelt  v.  Frost,  1  Abbott,  74. 


§219  EXECUTION.  133 

219.  [1854.]  The  following  property  shall  be  exempt  from  exe- 
cution, except  as  herein  otherwise  specially  provided  (a). 

1st.  Chairs,  tables,  desks  and  books  to  the  value  of  one  hundred 
dollars,  belonging  to  the  judgment  debtor. 

2d.  Necessary  household,  table  and  Idtchen  furniture  belonging  to 


(a)  For  "Act  to  exempt  the  homestead  and  other  property  from  forced  sale,"  see 
Statutes  0/1851,  296  ;    Wood's  Digest,  ^83,  Art.  2580. 

1 .  The  homestead  act  applies  to  and  affects  property  acquired  previous  to  its  pas- 
sage.—  Cook  V.  Mc Christian,  4  Cal.,  23. 

2.  A  notice  of  homestead  is  not  required  (o  be  filed  in  the  county  recorder's  of- 
fice.— ib. 

3.  The  liomestead  is  the  dwelling  place  of  the  family,  where  they  permanently  re- 
side, and  that  residence  gives  notice  to  every  one  of  the  character  of  the  occupants' 
claim. — Ib  ;  Taylor  v.  Hargous,  ib.,  268 ;  Jlolden  v.  Pinney,  6  Cal.,  234  ;  Morse  v.  Mc- 
Carty,  7  Cal.,  Jan.  T.  '  , 

4.  The  fact  of  occupancy  as  a  homestead  was  properly  submitted  to  a  jury. — lb. 

5.  The  purchaser  of  a  liomestead  from  the  husband  without  the  concurrence  of  the 
wife,  is  not  entitled  to  recover  the  excess  of  value  over  $5000. — Ib. 

6.  The  removal  of  the  husband  and  wife  from  a  homestead  thus  selected,  after  and 
in  consequence  of  sale  and  conveyance  by  the  husband,  in  which  the  wife  did  not  join, 
furnishes  no  evidence  of  an  abandonment  of  the  homestead  by  her,  but  seems  to  be  the 
very  case  against  which  the  statute  intended  to  provide. — Taylor  v.  Ilanjous,  4  Cal.,  268 ; 
Eolden  v.  Pinney,  6  Cal.,  234. 

7.  It  becomes  a  sort  of  joint  tenancy,  with  the  right  of  survivorship,  as  between  hus- 
band and  wife,  and  this  estate  cannot  be  ahered  or  destroyed,  except  by  the  concur- 
rence of  both,  in  the  manner  provided  by  law,  unless  it  be  in  favor  of  an  innocent  pur- 
chaser without  notice. — Ib. ;  Morse  v.  McCarty,  7  Cal.,  Jan.  T. 

8.  In  the  case  of  the  successive  occupancy  of  several  places  as  residences,  the  recov- 
ery of  any  one  of  them  by  the  wife,  as  a  homestead,  would  bar  her  recovery  of  any 
other  as  such. — Ib.  ;   Taylor  v.  Ikmjous,  4  Cal.,  268. 

9.  Homesteads  cannot  be  carved  out  of  land  held  in  joint  tenancy,  or  by  tenancy  in 
common,  because  it  has  provided  no  mode  for  their  separation  and  ascertainment. — 
Wol/y.  Fleischacker,  5  Cal.,  244  ;  Reynolds  v.  Pixley,  6  ib.,  165;  Giblin  \.  Jordan, 
ib.,  416. 

10.  B.  bought  the  premises  in  controversy,  and  executed  a  mortgage  in  part  pay- 
ment, which  was  transferred  to  the  plaintifi^'.  Plaintiff  then  loaned  B.  a  further  sum, 
cancelled  tlic  first  mortgage  and  took  another  mortgage  on  the  same  lot,  with  another; 
held,  the  land  could  not  be  claimed  as  a  homestead,  and  was  liable  for  the  renuxinder 
of  the  puix-hase  money. — Dillon  v.  Byrne,  5  Cal.,  455. 

11.  The  homestead  is  only  liable  for  the  remainder  of  the  purchase  money  with  the 
interest  unpaid. — Ib. 

12.  A  sale  or  alienation  of  tiie  homestead  property  without  the  signature  of  the  wife, 
is  void  only  as  to  the  homestead  value  of  $5000. — Sanjenl  v.   Wilson,  ib.,  504. 


134  EXECUTION.  §219 

the  judgment  debtor,  including  stove,  stove-pipe,  and  stove  furniture, 
"wearing  apparel,  beds,  bedding  and  bedsteads,  and  provisions  actually 
provided  for  individual  or  family  use,  sufficient  for  one  month. 

3d.  The  farming  utensils  or  implements  of  husbandry  of  the  judg- 

13.  In  an  action  to  foreclose  a  mortgage  upon  property  claimed  as  a  homestead,  the 
wife  should  be  allowed  to  intervene. — Ih. 

14.  To  make  a  valid  saleof  the  homestead  requires  the  joint  deed  of  the  husband  and 
wife  ;   sei)arate  deeds  are  both  invalid. — Poole  v.  Qerrard,  6  Cal.,  71. 

15.  A  wife  cannot  sue  alone  to  recover  the  estate  ;  both  husband  and  wife  must  join 
ill  the  action. — lb. 

16.  After  a  partition  of  property  held  in  joint  tenancy,  there  must  be  overt  acts  of 
dedication  of  the  se])arate  property,  to  create  the  right  of  homestead. — Reynolds  v.  Pix- 
ley,  6  Cal.,  165. 

17.  The  question  of  homestead  is  a  question  of  fact  ;  "and  the  presumption  arising 
from  residence  may  be  defeated  by  facts  and  circumstances  aliunde. — I/olden  v.  Pmnty, 
ib.,  234.  • 

18.  The  sheriff  should  not  sell  under  execution  a  house  claimed  as  a  homestead, 
and  worth  more  than  S5000,  until  an  exact  appraisement  of  the  premises  is  had,  so 
that  the  sheriff  can  convey  a  definite  fractional  undivided  intercut,  therein- — Gain  y. 
Eastabrook,  6  Cal.,  457. 

19.  The  interest  conveyed  otherwise  will  be  undefined  and  uncertain,  and  upon 
which  the  purchaser  cannot  maintain  an  action  for  possession  and  mesne  profits. — lb. 

20.  A  husband  and  wife  may  destroy  a  homestead  right  by  selling  the  whole  of  the 
propertj',  or  by  selling  an  undivided  interest  therein. — Kellersberger  \ .  Kopp,  6  Cal.,  5G3. 

21 .  If  the  family  did  not  reside  upon  the  premises-prior  to  the  giving  of  a  mortgage 
thereupon,  by  the  husband,  the  character  of  homestead  did  not  become  impressed  u]ion 
the  premises,  and  the  homestead  exemption  cannot  l)e  maintained  against  tiie  mort- 
gage.—  C(iry  V.  Tice,  6  Cal.,  625. 

22.  'Wiiere  the  wife  did  not  reside  in  California,  the  law  will  not  construe  her  domi- 
cil  to  be  with  the  husband  in  California,  to  maintain  a  right  of  homestead  against  a 
mortgage  given  before  her  arrival  and  residence  on  the  premises. — lb. ;  Benedict  v. 
Bunnell,'  Cal.,  Jan.  T. ;  Rix  v.  Mc  Henry,  ib. 

23.  A.,  a  married  man,  mortgaged  the  homestead  to  B.  without  tlie  concurrence  of 
his  wife.  Subsequently  A.  and  iiis  wife  m6rtgage(l  the  iiomestcad  to  C.  ;  held,  that  C. 
could  in'ge  the  same  objections  to  the  mortgage  of  B.  that  A.  and  his  wife  could,  and 
that  the  mortgage  to  B.  was  invalid,  if  the  premises  were  worth  less  than  S5()(K). — Dor- 
sey  V.  McFarland,  7  Cal.,  April  T. ;    Van  Reyniijom  v.  Revalk,  7  Cal.,  July  T. 

24.  The  separate  property  of  the  husband  acquired  before  marriage,  may  become 
the  homestead  as  well  as  the  common  projierty  of  the  husband  and  wife. — Revalk-  v. 
Kraemer,  7  Cal.,  July  T. 

.25.  Legal  proceedings  to  be  conclusive  against  cither  husband  or  wife,  as  to  their 
right  of  homestead,  must  embrace  botii. — lb.;  ^fad■s  v.  Mms/i,  8  Cal.,  Jan.  T. 

26.  Where  the  wife  died,  leaving  no  children,  the  right  of  homestead  ceased,  as  the 
husband  ceased  to  be  the  head  of  a  family  ;  hut  a  prior  mortgage  by  the  husband  alone 


§219  EXECUTION.  135 

ment  debtor,  also  two  oxen,  or  two  horses,  or  two  mules  and  their  har- 
ness, two  cows  and  one  cart  or  Avagon,  and  food  for  such  oxen,  horses, 
cows  or  mules,  for  one  month. 

4th.  The  tools  and  im[)lements  of  a  mechanic  necessary  to  carry  on 
his  trade,  the  instruments  and  chests  of  a  surgeon,  physician,  surveyor 
and  dentist,  necessary  to  the  exercise  of  their  profession,  with  the  pro- 
fessional library,  and  the  law  libraries  of  an  attorney  or  counselor. 

5th.  The  tent  and  furniture,  including  a  table,  camp  stools,  bed  and 
bedding  of  a  miner  ;  also,  his  rocker,  shovels,  spades,  wheelbarrows, 
pumps  and  other  instruments  used  in  mining,  with  provisions  necessary 
for  his  support  for  one  month. 

Gtli.  Two  oxen,  or  two  horses  or  two  mules,  and  their  harness,  and 
one  cart  or  wagon,  by  the  use  of  w^hich  a  cartman,  teamster,  or  other 
laborer  hal;)itually  earns  his  living ;  and  food  for  such  oxen,  hoi'ses  or 
•  mules  for  one  month  ;  and  a  horse,  harness  and  vehicle  used  by  a  phy- 
sician or  surgeon  in  making  his  professional  visits. 

7th.  All  fire  engines,  with  the  carts, .buckets,  hose  and  apparatus 
thereto  appertaining,  of  any  fire  company  or  department  organized 
under  any  law  of  this  state. 

8th.  All  arms  and  accoutrements  required  by  law  to  be  kept  by 
any  person.  But  no  article  mentioned  in  this  section  shall  be  exempt 
from  execution  issued  on  a  judgment  recovered  for  its  price,  or  upon  a 
morto;ao;e  thereon. 

9th.  iVll  court  houses,  jails,  public  offices  and  buildings,  lots,  grounds, 
and  personal  property  belonging  to  any  county  of  this  state,  and  all  cem- 
eteries, public  squares,  parks  and  places,  pul)lic  buildings,  town  halls, 

bcin<r  originally  void  as  to  the  homestead,  is  not  made  valid  by  the  death  of  the  wife, 
and  the  mortgagee  stands  in  the  same  position  as  any  other  creditor. — lb. 

27.  The  husband  alone  being  defendant,  cannot  appeal,  the  question  of  homestead 
not  being  properly  in  the  case. — Ixevalk  v.  Kmemer,  7  Cal.,  July  T. 

28.  Where  the-husband  and  wife  execute  a  conveyance  of  their  homestead,  which 
the  husband  delivers  to  the  purchaser,  and  the  money  therefor  is  fraudulently  attached 
before  paid  over,  equity  will  compel  a  cancelation  of  the  deed. — Still  v.  Satuiders,  7  Cal., 
Oct.  T. 

29.  The  homestead  right  is  not  aflfectcd  liy  the  foreclo.sure  of  a  mortgage  executed 
by  the  husband  alone. —  Cook  v.  Klink,  7  Cal.,  Oct.  T. 

30.  "Where  A.  and  wife  conclude  to  purchase  premises  of  B.,  and  for  that  ])urpose 
borrowed  money  of  C,  and  executed  a  mortgage  to  him  by  the  husband  aloue,  the 
homestead  right  will  be  forfeited  under  the  mortgage. — Lasson  v.  Vance,  7  Cal., 
Oct.  T. 


136  EXECUTION.  §220 

markets,  buildings  appertaining  to  the  fire  departments,  and  the  lots 
and  grounds  thereunto  belonging  and  appertaining,  owned  or  hold  by 
any  town  or  incorporated  city,  or  dedicated  by  such  town  or  city  to 
health,  ornament  or  public  use. 

1.  6tli.  A  hackney  coach  is  not  exempt. — Qiiir/Iei/y.  Gorham,  5  Cal.,  418. 

2.  A  cartinan's  horse,  harness  and  cart  are  exempt. — Harthouse  v.  Hikers,  1  Ducr, 
606. 

3.  A  mining  claim  is  not  exempt  from  forced  sale.^3/cA'(»o«  v.  Bishre,  8  Cal., 
Jan.  T. 

4.  9th.  A  levy  upon  the  county  revenues  in  the  hands  of  the  treasurer,  was  illegal 
and  void.  These  funds  are  authorized  by  law,  and  appropriated  to  distinct  purjioses, 
and  are  not  suliject  to  seizure  upon  execution. —  O'illman  v.  Contra  Costa  county,  7  Cal., 
July  T. 

220.  The  sheriff  shall  execute  the  writ  against  the  property  of  the 
judgment  debtor,  by  levying  on  a  sufficient  amount  of  property,  if 
there  be  sufficient ;  collecting  or  selling  the  things  in  action,  and  sell- 
ing the  other  property,  and  paying  to  the  plaintiff  or  his  attorney,  so 
much  of  the  proceeds  as  will  satisfy  the  judgment,  or  depositing  the 
amount  with  the  clerk  of  the  court ;  any  excess  in  the  proceeds  over 
the  judgment  and  the  sheriff's  fees,  shall  be  returned  to  the  judgment 
debtor.  When  there  is  more  property  of  the  judgment  debtor  than  is 
sufficient  to  satisfy  the  judgment  and  the  sheriff's  fees,  within  the  view 
of  the  sheriff,  he  ,  shall  levy  only  on  such  part  of  the  property  as  the 
judgment  debtor  may  indicate  :  j^rc^yu/tfcZ  that  the  judgment  debtor  be 
present  at,  and  indicate  at  the  time  of  the  levy,  such  part ;  and  j^rovided, 
that  the  property  indicated  be  amply  sufficient  to  satisfy  such  judg- 
ment and  fees. 

1.  Tliis  was  evidently  enacted  for  the  benefit  of  the  debtor. — Smith  y.  Ilaiufdll,  & 
Cal.,  47. 

2.  A  slicritr,  upon  whom  a  fine  liad  been  imposed  by  the  court  to  the  amount  of  an 
execution  issued  to  him,  for  willful  neglect  of  his  duty  in  regard  to  it,  and  who,  pursu- 
ant to  the  order  of  the  court,  has  paid  tlie  fine  to  the  judgment  creditor,  has  no  author- 
ity to  enforce  the  execution  against  the  debtor  for  his  own  indemnity.  Nor  has  he 
authority  to  do  so  where  the  amount  of  the  fine  was  paid  with  his  moneys  by  a  third 
person,  and  the  judgment  assigned  to  such  third  person  to  be  held  for  the  slierifF's 
benefit.  An  ollicer  cannot  execute  final  process  in  his  ovm  favor,  or  for  his  own 
benefit. — Carpenter  v.  Stdwdl,  1  Kern.,  61. 

3.  In  selling  property  under  an  execution,  a  sheriff  acts  by  virtue  of  a  jiower  ;  if 
that  j)Ower  does  not  exist,  no  title  passes. — lb. 

4.  To  enable  a  sheriff  to  receive  per  ccntagc,  the  property  must  be  sold. — Iloije  v. 
Page,  11  How.  Vr.,  207. 


§223  EXECUTION.  137 

221.  Before  the  sale  of  property  on  execution,  notice  thereof  shall 
be  given  as  follows  : 

1st.  In  case  of  perishable  property,  bj  posting  written  notice  of  the 
time  and  place  of  sale,  in  three  public  places  of  the  township  or  city 
where  the  sale  is  to  take  place,  for  such  a  time  as  may  be  reasonable, 
considering  the  character  and  condition  of  the  property ; 

2d.  In  case  of  other  personal  property,  by  posting  a  similar  notice 
in  three  public  places  of  the  townsl(ip  or  city  where  the  sale  is  to  take 
place,  not  less  than  five  nor  mor9«than  ten  days  successively ; 

3d.  In  case  of  real  property ,'"'by  posting  a  similar  notice,  particu. 
larly  describing  the  property,  for  twenty  days  successively,  in  three 
pubUc  places  of  the  township  or  city  where  the  property  is  situated, 
and  also  where  the  property  is  to  be  sold ;  and  publishing  a  copy 
thereof  once  a  week,  for  the  same  period,  in  a  newspaper  in  the  county, 
if  there  be  one.  ' 

See  Sec.  654.  * 

1.  If  the  officer  neglects  to  give  the  notice,  the  sale  shall  not  be  void. — Smith  v.  Ran- 
dall, 6  Cal.,  47  ;  McFarland  v.  Ahila,  7  ib.,  April  T.;  Harvey  v.  Fishe,  8  ib.,  Jan.  T. 

222.  An  o^icer  selling  without  the  notice  prescribed  by  the  last 
section,  shall  forfeit  five  hundred  dollars  to  the  aggrieved  party,  in 
addition  to  his  actual  damages ;  and  a  person  willfully  taking  down  or 
defacing  the  notice  posted,  if  done  before  the  sale  or  the  satisfaction  of 
the  judgment,  (if  the  judgment  be  satisfied  before  sale,)  shall  forfeit 
five  hundred  dollars. 

223.  All  sales  of  property  under  execution  shall  be  made  at  auc- 
tion to  the  highest  bidder,  and  shall  be  made  between  the  hours  of  nine 
in  the  morning,  and  five  in  the  afternoon  ;  after  sufficient  property  has 
been  sold  to  satisfy  the  execution,  no  more  shall  be  sold.  Neither  the 
officer  holding  the  execution,  nor  his  deputy,  shall  become  a  purchaser, 
or  be  interested  in  any  purchase  at  such  sale.  When  the  sale  is  of 
personal  property,  capable  of  manual  delivery,  it  shall  be  within  view 
of  those  who  attend  the  sale,  and  be  sold  in  such  parcels  as  are  likely 
to  bring  the  highest  price  ;  and  when  the  sale  is  of  real  property,  and 
consisting  of  several  known  lots  or  parcels,  they  shall  be  sold  separately  : 
or  when  a  portion  of  such  real  property  is  claimed  by  a  third  person, 
and  he  requires  it  to  be  sold  separately,  such  portion  shall  be  thus  sold. 

J 


138  EXECUTION.  ^22-1 

The  judgment  debtor,  if  present  at  the  sale,  may  also  direct  the  order 
in  which  property,  real  or  personal,  shall  be  sold,  "when  such  property 
consists  of  several  known  lots  or  parcels,  or  of  articles  which  can  be 
sold  to  advantage  separately  ;  and  the  sheriff  shall  be  bound  to  follow 
such  directions. 

1.  A  sheriff's  deputy  may  execute  a  deed  for  property  sold  under  execution,  but 
he  must  execute  it  in  the  name  of  the  sheriff.  If  executed  in  his  own  name,  it  is  deci- 
sive against  the  party  claiming  under  it. — Lewes  v.  Thompson,  3  Cal.,  266. 

2.  The  statute  regulating  sheriff's  sales  of  real  estate  does  not  design  to  invest  a 
purchaser  with  the  title  until  six  months  after  the  sale. — Duprey  v.  Moran,  4  Cal.,  196. 

3.  A  purchaser  at  sheriff's  sale  fiC(|uircs  no  right  whatever  against  the  sheriff  for 
property  sold,  unless  at  the  time  of  the  sale  he  pays  down  in  cash  the  whole  amount  of 
the  purchase  money. — People  v.  Hays,  5  Cal.,  66. 

4.  The  sale  of  separate  parcels  of  land  together  as  one  parcel,  is  always  sufficient 
cause  for  setting  aside  the  sale. — Ames  v.  Lorhrood,  13  How.  Pr.,  55.5. 

5.  Under  what  circumstances  and  on  what  terms  a  re-sale  of  property  sold  at  a  judi- 
cial sale  will  be  ordered. — Stcihl  v.  Charles,  5  Abbott,  348. 

224.  If  a  purchaser  refuse  to  pay  the  amount  bid  by  him  for 
property  struck  off  to  him  at  a  sale  under  execution,  the  officer  may 
again  sell  the  property  at  any  time,  to  the  highest  bidder,  and  if  any 
loss  be  occasioned  thereby,  the  officer  may  recover  the  amount  of  such 
loss,  Avith  costs,  by  motion  upon  previous  notice  of  five  days  before  any 
court,  or  before  any  justice  of  the  peace,  if  the  same  shall  not  exceed 
his  jurisdiction. 

1.  This  provision  of  law  will  be  enforced,  unless  fraud  is  proven  between  the  officer 
and  the  second  purchaser. — Harvey  v.  FisLe,  8  Cal.,  Jan.  T. 

2.  The  auctioneer  may  put  up  the  property  for  sale  again  if  the  purchaser  does  no 
comply  with  the  terms  of  the  sale,  but  this  must  be  on  such  notice  that  no  one  will  be 
misled  by  it. — Leiitz\.  Cnii;/,  2  Abbott,  294. 

3.  Inadequacy  of  price,  as  would  amount  to  a  fraud,  will  authorize  a  re-sale. — Kinff 
v.  Morris,  2  Abbott,  296. 

4.  Actual  evidence  of  fraud  may  be  shown  in  defense  when  the  party  did  not  know 
the  condition  of  the  thing  purchased,  and  was  induced  to  buy  upon  the  faith  of  repre 
sentations  made  by  those  who,  by  their  peculiar  relations  to  the  subject,  were  supposed 
to  be  thoroughly  acquainted  with  it. —  Welister  v.  Hincorth,  7  Cal.,  July  T. 

225.  Such  court  or  justice  shall  proceed  in  a  summaiy  manner 
and  give  judgment  and  issue  execution  therefor  forthwith,  but  the  de- 
fendant may  claim  a  jury.  And  the  same  proceedings  may  be  bad 
against  any  subsccpient  purchaser  who  shall  refuse  to  pay,  and  the 
officer  may,  in  his  discretion,  thereafter  reject  the  bid  of  any  pei'son 
so  rcfushii;. 


§230  EXECUTION.  139 

226.  The  two  preceding  sections  shall  not  be  construed  to  make 
the  officer  liable  for  any  more  than  the  amount  bid  by  the  second  or 
subse<i[uent  purchaser,  and  the  amount  collected  from  the  purchaser 
refusing  to  pay. 

227.  When  the  purchaser  of  any  personal  property  capable  of 
manual  delivery  shall  pay  the  purchase  money,  the  officer  making  the 
sale  shall  deliver  to  the  purchaser  the  property,  and  if  desired  shall 
execute  and  deliver  to  him  a  certificate  of  the  sale  and  payment.  Such 
certificate  shall  convey  to  the  purchaser  all  the  right,  title  and  interest 
which  the  debtor  had  in  and  to  such  property  on  the  day  the  execution 
was  levied. 

228.  When  the  purchaser  of  any  personal  property  not  capable  of 
manual  delivery  shall  pay  the  purchase  money,  the  officer  making  the 
sale  shall  execute  and  deliver  to  the  purchaser  a  certificate  of  sale 
and  payment.  Such  certificate  shall  convey  to  the  purchaser  all  right, 
title  and  interest  which  the  debtor  had  in  and  to  such  property  on 
the  day  the  execution  was  levied. 

1.  The  word  officer  in  the  two  previous  sections  refers  to  the  incumbent  at  the  time 
of  the  act  of  sale,  and  if  he  be  dead  his  successor  cannot  perform  the  duty. — People  v. 
Boring,  7  Cal.,  Oct.  T. 

2.  How  the  act  is  to  be  done  in  such  a  case,  discussed  and  suggested. — lb. 

229.  Upon  a  sale  of  real  property,  when  the  estate  is  less  than  a 
leasehold  of  two  years'  unexpired  term,  the  sale  shall  be  absolute.  In 
all  other  cases  the  real  property  sold  shall  be  subject  to  redemption,  as 
provided  in  this  chapter.  The  officer  shall  give  to  the  purchaser  a  cer- 
tificate of  the  sale,  containing: 

1st.  A  particular  description  of  the  real  property  sold ; 

2d.  The  price  bid  for  each  distinct  lot  or  parcel ; 

3d.  The  whole  price  paid  ; 

4th.  When  subject  to  redemption  it  shall  be  so  stated,  a  duplicate 
of  which  certificate  shall  be  filed  by  the  officer  with  the  recorder  of  the 
county. 

230.  Property  sold  subject  to  redemption,  as  provided  in  the  last 
section,  or  any  part  sold  separately,  may  be  redeemed  in  the  manner 


140 


11  //  / 

REDEMPTIOX.     /  cf^  ■   kj .  /UO  •         §231 


St. 


lUA 


hereinafter  provided,  by  the  following  persons,  or  their  successors  in 
interest  : 

1st.  The  judgment  debtor,  or  his  successor  in  interest,  in  the  whole 
or  any  part  of  the  property. 

2d.  A  creditor,  having  a  lien  by  judgment  or  mortgage  on  the 
property  sold,  or  on  some  share  or  part  thereof,  subsequent  to  that  on 
which  the  property  was  sold.  The  persons  mentioned  in  the  second 
subdivision  of  this  section,  are,  in  this  chapter,  termed  redemptioners. 

1.  The  redemption  should  be  beneficially  oonstraed. — Kentv.  Laffun,  2  Cal.,  595. 

2.  A  party,  (the  assignee  of  the  judgment  debtor,)  is  bound  to  pay  the  whole  of  the 
plaintirt's  judgment  in  order  to  redeem,  and  not  merely  his  bid  with  interest.  The  lieu 
of  tlie  judgment  continues  till  the  balance  is  paid. —  Vandyke  v.  Herman,  3  Cal.,  295. 

3.  Upon  the  redemption,  tlie  redeeming  party  has  a  right  to  an  assignment  of  the 
mortgage  redeemed,  and,  if  it  be  recorded,  a  right  to  require  the  mortgagee  to  acknow- 
ledge the  assignment. — Averill  v.  Taylor,  4  Seld.,  44. 

4.  A  redemption  of  land  may  be  made  at  any  time  before  the  close  of  the  last  day 
allowed  by  law  for  the  purpose ;  business  hours  are  not  regarded  in  this  respect. — Peo- 
ple V.  Pen-in,  1  How.  Pr.,  75. 

231.  The  judgment  debtor,  or  a  redemptioner,  may  redeem  the 
property  from  the  purchaser  within  six  mouths  after  the  sale,  on  pay- 
ing the  purchaser  the  amount  of  his  purchase,  with  eighteen  per  cent.    /Hi 
thereon  in  addition,  together  with  the  amount  of  any  assessments  or 
taxes  which  the  purchaser  may  have  paid  thereon  after  the  purchase, 

and  interest  on  such  amount ;  and  if  the  purchaser  bealso  acrcnlitor^  _ 
haviuiT  a  lien  prior  to  that  of  the  redemptionerTilie  amoiKnTTtr  such 
hen  with  interest.  ^  2  V/.  'Kc^  (^<r.     C9-<^ 

1.  When  property  was  sold  under  judgment  prior  to  the  passage  of  the  act  providing 
for  redemption,  there  is  no  right  of  redemption.— Peo/)/e  v.  Hays,  4  Cal.,  127  ;  Stale  v. 
Mitchell,  5  Cal.,  401 . 

2.  The  purchaser  may  iiave  a  lien  upon  the  property  prior  to  that  of  tlie  redemp- 
tioner, and  that  lien  must  be  paid. — Knlijlit  v.  Fair,  8  Cal.,  Jan.  T. 

3.  A  junior  incumbrancer  is  entitled  to  redeem  a  ))rior  mortgage,  and  is  entitled  to 
a  subrogation  of  the  riglits  of  the  senior  mortgagee.— JphA/hs  v.  Continental  Insurance 
Co.,  12  How.  I'r.,  OR. 

4.  The  redemption  money  must  be  jiaid  to  the  properly  authorized  person  or  officer. 
(mflin  V.  Chase,  23  Barb.,  278. 

232.  If  the  property  be  so  redeemed  by  a  redemptioner,  either  tlic 
judgment  debtor,  or  another  redemptioner  may,  within  sixty  days  after 
the  last  redem])tion,  again  redeem  it  from  the  last  redemptioner,  on 


^■^i^ 


r^jL^t'Co  ->^. 


.Jf^  • 


§233  REDEMPTION.         '  I  8 i ^    '.    ^.   Z^^.      Ul 

paying  the  sum  paid  on  such  last  rec]^tnption,  with  six  per  cent,  thereon 
in  addition,  and  the  amoiuit  of  anVassessraents  or  taxes  which  the  said 
last  redemptioner  may  have  pa/d  thereon,  after  the  redemption  by 
him,  with  interest  on  such  amoiint ;  and  the  amount  of  any  liens  held 
by  said  last  redemptioner  prior  to  his  own,  with  interest.  Tlie  prop- 
erty may  be  agahi,  and  as  often  as  tlie  debtor  or  any  redemMtioner  is  so 
disposed,  redeemed  from  any  previoii^  redemptioner,  within  sixty  days 
after  the  last  redemption,  on  paying  the  sum  paid  on  the  last  previous 
redemption,  with  six  per  cent,  thereon  in  addition,  and  the  amount  or 
any  assessments  or  taxes  which  the  said  last  previous  redemptioner 
paid  after  the  redemption  by  him,  ^mh  interest  thereon  ;  and  the 
amount  of  any  liens  held  by  the  said  hist  redemptioner,  previous  to  his 
own,  with  interest.  Notice  of  reckmption  shall  be  given  to  the  sheriif. 
If  no  redemption  be  made  withia  six  months  after  the  sale,  the  pur- 
chaser shall  be  entitled  to  a/^nveyance  ;  or  if  so  redeemed,  whenever 
sixty  days  have  elapsed, /aid  no  other  redemption  has  been  made,  and 
notice  thereof  given,  thd  time  for  redemption  shall  have  expired,  and 
the  last  redemptioner  slmll  be  entitled  to  a  sheriff's  deed.  If  the 
debtor  redeem  at  any  time%efore  the  time  for  redemption  expires,  the 
effects  of  the  sale  shall  be  terminated,  and  he  be  restored  to  his 
estate. 

1.  A  sheriff's  deputy  may  execute  a  deed  for  property  sold  under  execution,  but  lie 
must  execute  it  in  the  name  of  the  sheriif.  If  executed  in  his  own  name,  it  is  decisive 
against  the  party  claiming  under  it. — Lewes  v.  Tliomjison,  3  Cal.,  266. 

2.  A  mandamus  will  not  lie  against  a  sheriif  to  compel  him  to  make  a  deed  to  land 
to  a  purchaser  at  execution  sale  ^^ho  refuses  to  i)ay  the  purchase  money,  for  the  reason 
that  he  is  the  oldest  judgment  and  execution  creditor,  and  entitled  to  the  money ;  espe- 
cially when  there  is  an  unsettled  contest  as  to  the  question  of  lien. —  Williams  v.  Smith, 
6  Cal.,  91. 

3.  Under  what  circumstances  and  upon  what  terms  a  re-sale  of  property  sold  at  a 
judicial  sale  will  be  ordered. — Lentz  v.  Craig,  2  Abbott,  294;  Kiii</\.  Moiris,  ib.,  296 
Merchant's  Insurance  Co.  v.  Hinman,  3  ib.,  455. 

233.  The  payment  mentioned  in  the  last  two  sections  may  be 
made  to  the  purchaser  or  redemptioner,  as  the  case  may  be,  or  for 
him,  to  the  officer  who  made  the  sale  ;  and  a  tender  of  the  money 
shall  be  equivalent  to  payment. 

1.  "Wlicre  land  was  sold  at  sheriif's  sale,  the  proceeds  of  which  did  not  amount  to 
the  whole  judgment,  leaving  a  balance  unpaid,  and  was  afterwards  redeemed  under 
the  statute,  held,  that  the  party  redeeming,  (who  was  an  assignee  of  the  judgment 
debtor,)  was  bound  to  pay  the  whole  of  the  plaintiff's  judgment,  and  not  merely  his  bid 


142  REDEMPTION.  §234 

with  interest,  and  eighteen  per  cent.,  and  that  the  lien  of  the  judgment  continued  until 
the  balance  was  paid. —  Vamli/kev.  Herman,  3  Cal.,  295. 

2.  A  payment  to  the  sheriff  for  the  redemption  of  land  sold  under  execution,  cannot 
be  made  in  certified  checks. — People  v.  Hoi/s,  4  Cal.,  127. 

3.  The  "  officer  who  made  the  sale  "  refers  to  the  incumbent  at  the  time  of  the  act 
of  sale,  and  not  to  the  official  character  of  the  person,  and  if  he  be  dead  his  successor 
cannot  perform  the  duty,  /.  e.  receive  the  redemption  money. — People  v.  Boring,  7 
Cal.,  Oct.  T. 

4.  How  redemption  money  in  such  cases  is  to  be  paid  discussed  and  suggested. — 76. 

234.  A  redemptiorier  shall  produce  to  the  officer  or  person  from 
whom  he  seeks  to  redeem,  and  serve  with  his  notice  to  the  sheriff; 

1st.  A  copy  of  the  docket  of  the  judgment  under  which  he  claims 
the  right  to  redeem,  certified  by  the  clerk  of  the  court,  or  of  the  county 
where  the  judgment  is  docketed  ;  or  if  he  redeem  upon  a  mortgage 
or  other  lien,  a  note  of  the  record  thereof  certified  by  the  recorder  ; 

2d.  A  copy  of  any  assignment  necessary  to  establish  his  claim, 
verified  by  the  affidavit  of  himself,  or  of  a  subscribing  witness  thereto ; 
and, 

3d.  An  affidavit  by  himself,  or  his  agent,  showing  the  amount  then 
actually  due  on  the  lien. 

235.  Until  the  expiration  of  the  time  allowed  for  redemption,  the 
court  may  restrain  the  commission  of  Avaste  on  the  property,  by  order 
granted  with  or  without  notice,  on  the  appUcation  of  the  purchaser  or 
the  judgment  creditor.  But  it  shall  not  be  deemed  waste  for  the  per- 
son in  possession  of  the  property  at  the  time  of  sale,  or  entitled  to  pos- 
session afterwards,  during  the  period  allowed  for  redemption,  to  con- 
tinue to  use  it  in  the  same  manner  in  which  it  was  previously  used  ; 
or  to  use  in  the  ordinary  course  of  husbandry ;  or  to  make  the  neces- 
sary repairs  of  buildings  thereon  ;  or  to  use  wood  or  timber  on  the 
property  therefor  ;  or  for  the  repair  of  fences  ;  or  for  fuel  in  his  family 
while  he  occupies  the  property. 

1.  A  purchaser  under  sheriff's  sale  has  no  right  to  the  possession  of  the  premises 
until  the  expiration  of  the  time  allowed  for  redemption. — Gui/  v.  MiddUton,  5  Cal., 
392. 

230.  The  purchaser  from  the  time  of  the  sale  until  a  redemption, 
and  a  redemptioner,  from  the  time  of  his  redemption  until  another  re- 
demption, shall  be  entitled  to  receive  from  the  tenant  in  possession, 


^ 


§238  SUPPLEMENTARY  PROCEEDINGS.  143 

the  rents  of  the  property  sold,  or  the  vakie  of  the  use  and  occupation 
thereof. 

1.     Altliough  not  entitled  to  possession,  yet  he  has  a  right  to  the  rents  and  profits. — 
lieipiolds  V.  Lathroj),  7  Cal.,  Jan.  T. 

237.     If  the  purchaser  of  real  property  sold  on  execution,  or  his     j  ^^ 

successor  in  interest,  be  evicted  therefrom  in  consequence  of  irregu-    ^ ■ — ^' 

larity  in  the  proceedings  concerning  the  sale,  or  of  the  reversal  or  dis- 
charge of  the  judgment,  he  may  recovHiLthe  ^ricepaid,  with  iaterest,  ^J^.^ 
from  the  judgment  creditor.     If  the  recovery  be  in  conse<iuence  of    *   o   ^   > 
the  irregularity  in  the  proceedings  concerning  the  sale,. the  judgment    ^'    '  ^^ 
may,  by  order  of  the  court,  upon  notice  to  the  judgment  debtor,  be 
revived,  and  a  new  execution  issued  for  the  price  paid  on  the  sale, 
with  interest.     Such  judgment  shall  be  a  lien  on  the  real  estate  of  the 
judgment  debtor,  only  from  the  time  of  its  revival. 


CHAPTER  II. 

PROCEEDINGS    SUPPLEMENTARY   TO   THE   EXECUTION. 

238.  When  an  execution  against  property  of  the  judgment  debtor, 
or  of  any  one  of  several  debtors  in  the  same  judgment,  issued  to  the 
sheriff  of  the  county  where  he  resides  ;  or  if  he  do  not  reside  in  this 
state,  to  the  sheriff  of  the  county  where  the  judgment  roll  is  filed ;  is 
returned  unsatisfied  in  whole  or  in  part,  the  judgment  creditor,  at  any 
time  after  such  return  is  made,  shall  be  entitled  to  an  order  from  a 
judge  of  the  court,  or  a  county  judge,  requiring  such  judgment  debtor 
to  appear  and  answer  concerning  his  property,  before  such  judge,  or  a 
referee  appointed  by  him,  at  a  time  and  place  specified  in  the  order  ; 
but  rio  judgment  debtor  shall  be  required  to  attend  before  a  judge  or 
referee  out  of  the  county  in  which  he  resides,  when  proceedings  are 
taken  under  the  provisions  of  this  chapter. 

1.  These  proeecdings  are  a  substitute  for  a  creditor's  bill  in  the  old  practice. — Ad- 
ams V.  Haf^kett,  7  Cal.,  Jan.  T. 

2.  These  provisions  are  not  applicable  to  judgments  against  corporations — Hinds 
V.  Canandaujua,  R.  R.  Co.,  10  How.  Pr.,  487  ;  Sherwoodv.  Buffalo  R.  R.  Co.,  12  ib.,  136. 

3.  On  application  for  the  appointment  of  a  receiver  upon  proceedings  supplemen- 
tary to  execution,  the  judgment  debtor  cannot  object  to  the  appointment  on  the  groimd 


144  SUPPLEMENTAEY   PROCEEDINGS.  §239 

that  tlic  examination  Iiiis  not  shown  him  to  be   tiie  owner  of  the  property. — Ex  parte 
Myer,  2  Abbott,  476. 

4.  On  the  return  of  an  order  for  an  examination,  the  order  may  be  dismissed  on  de- 
fendant's motion,  if  it  appear  to  have  been  improvidentl}  granted. —  Curtois  v.  Harrison, 
3  ib.,  96. 

.5.  A  judgment  debtor  who  appears  pursuant  to  an  order,  and  without  objeetion  sub- 
mits to  an  examination  and  omits  to  appeal  from  a  subsequent  order  appointing  a  re- 
ceiver waives  objeetion  to  the  jurisdiction  of  the  judge  to  take  the  examination  and 
make  the  order. —  Viburt  v.  Frost,  ib.,  119. 

6.  A  person  examined  as  a  witness  before  a  referee  in  a  proceeding  supplementary 
to  execution  is  entitled  to  fees  as  a  witness. — Davis  v.  Turner,  4  How.  Fr.,  190. 

7.  A  person  not  a  party  to  the  judgments  may  be  made  a  party  to  supplementary 
proceedings. — lb. 

8.  The  judge  has  no  authority  under  these  proceedings  to  issue  a  commission  to 
examine  witnesses  abroad. — Graham  v.  Colbum,  14  ib.,  52. 

9.  A  party  examined  is  not  entitled  to  a  cross-examination,  but  he  may  have  the 
advice  and  instruction  of  counsel  in  forming  his  answers.     It  is  in  the  discretion  of  the 
court  to  direct  the  property  of  the  judgment  debtor  to  be  apjjlied  to  the  satisfaction  of 
the  judgment,  or  to  appoint  a  receiver,  or  if  the  case  require  it,  to  do  both. —  Cornimj 
Tooker,  5  ib.,  16. 

10.  The  judgment  debtor  may  be  cross-examined. — Lnoij  v.  Ifalsii/,  1  Duer,  589. 

239.  [1854.]  After  the  issuing  an  execution  against  property,  and 
upon  proof  by  affidavit  of  a  party,  or  otherwise,  to  the  satisfaction  of 
the  court  or  of  a  judge  thereof,  or  county  judge,  that  any  judgment 
debtor  has  property  "which  he  unjustly  refuses  to  apply  towards  the 
satisfaction  of  the  judgment,  such  court  or  judge  may,  by  an  order, 
require  the  judgment  debtor  to  appear  at  a  specified  time  and  place 
before  such  judge,  or  a  referee  appointed  by  him,  to  answer  concern- 
ing the  same  ;  and  such  proceedings  may  thereupon  be  had  for  the 
application  of  the  property  of  the  judgment  debtor  toward  the  satisfac- 
tion of  the  judgment,  as  are  provided  upon  the  return  of  an  execution. 
Instead  of  the  order  requiring  the  attendance  of  the  judgment  debtor, 
the  judge  may,  upon  affidavit  of  the  judgment  creditor,  his  agent  or 
attorney,  if  it  appear  to  him  that  there  is  danger  of  the  debtor  ab- 
sconding, order  the  sheriff  to  arrest  the  debtor  and  bring  him  before 
such  judge.  Upon  being  brought  before  the  judge,  he  may  be  ordered 
to  enter  into  an  undertaking  with  sufficient  surety,  that  he  will  attend 
from  time  to  time  before  the  judge  or  referee,  as  shall  be  directed, 
during  the  pendency  of  proceedings,  and  until  the  final  determination 
thereof,  and  will  not  in  the  mean  time  disjiose  of  any  ])orti()n  of  his 
property  not  exempt  from  execution.  In  default  of  entering  into  such 
undertaking,  he  may  be  committed  to  prison. 


§24:1  SUPPLEMENTARY   PROCEEDINGS.  145 

1.  The  assignee  of  a  judgment  may  institute  supplcmentarv  proecodings  under  the 
eodc,  although  the  party  ap|)lying  became  the  assignee  of  the  judgment  after  tlie  exe- 
cution was  returned  unsatisfied. — Ex  parte  Oir,  2  Abbott,  457. 

2.  After  an  examination  of  judgment  debtor  had  before  a  referee,  has  been  once 
completed  and  closed,  it  cannot  be  re-opened  except  upon  special  order  for  that  purpose. 
lb. 

3.  After  a  judgment  creditor  has  had  one  complete  examination  of  his  debtor,  he 
cannot  institute  a  new  examination  as  if  it  were  the  first,  but  must  api)ly  on  notice  and 
affidavits  showing  a  special  reason  why  a  new  examination  should  be  had  for  an  order 
for  that  purpose. — lb. 

4.  A  witness  examined  on  supplementary  proceedings  respecting  property  of  the 
judgment  debtor,  is  bound  to  answer  all  such  questions  as  may  be  put  concerning  such 
property.  He  is  not  to  be  excused  from  answering  because  he  sets  up  a  claim  to  the 
property  which  is  the  subject  of  examination. — Sandfordv.  Carr,  2  Abbott,  462. 

5.  The  affidavit  if  not  made  by  the  judgment  creditor,  and  does  not  state  that  the 
person  making  it  was  his  agent  or  had  any  interest  in  the  judgment,  or  any  authority 
whatever,  will  not  support  the  order  although  the  deponent  was  the  owner  of  the  judg- 
ment.— Limkaij  v.  Sherman,  5  How.  Pr.,  308. 

6.  These  proceedings  may  be  commenced  upon  the  proper  return  of  the  execution 
at  any  time  within  the  time  prescribed  for  the  return. — Livingston  v.  Clmveland,  5  ib., 
396. 

7.  There  must  be  an  execution  issued  and  the  same  returned  unsatisfied  previous 
to  the  issuance  of  this  order. — Saclett  v.  Neivton,  10  ib.,  560. 

8.  It  is  not  necessary  that  the  debtor  himself  should  be  examined  on  oath,  concern- 
ing his  property. —  Graves  v.  Lake,  12  How.  Pr.,  33. 

240.  After  the  issuing  of  an  execution  against  property,  any  per- 
son indebted  to  the  judgment  debtor  may  pay  to  the  sheriff  the  amount 
of  his  debt,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the  exe- 
cution, and  the  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the 
amount  so  paid. 

1.  The  issuing  of  a  second  execution  is  not  waiver  of  supplementary  proceedings 
commenced  after  the  return  of  the  first  execution. — Lilliendahl  x.  Fellennan,  II  How. 
Pr.,  528. 

241.  After  the  issuing  or  return  of  an  execution  against  property 
of  the  judgment  debtor,  or  of  any  one  of  several  debtors  in  the  same 
judgment,  and  upon  proof  by  affidavit  or  otherwise,  to  the  satisfaction 
of  the  judge,  that  any  person  or  corporation  has  property  of  such  judg- 
ment debtor,  or  is  indebted  to  him  in  an  amount  exceeding  fifty  dollars, 
the  judge  may,  by  an  order,  require  such  person  or  corporation,  or 
any  officer  or  member  thereof,  to  appear  at  a  specified  time  and  place, 
before  him  or  a  referee  appointed  by  him,  and  answer  concerning  the 
same. 


146  SUPPLEMENTARY  PROCEEDINGS.  §242 

> 

1.    If  it  appears  on  examination  of  witnesses  that  a  tl*"<J  person,  not  a  party  to  the 
'■.  proceeding,  is  in  possession  of  property  liable  to  an  execution,  belonjiingto  a  judgment 
■debtor,  the  projjer  remedy  is  to  levy  on  tSie  goods  and  sell  them,  or  to  institute  an  ac- 
tion in  the  nature  of  a  creditor's  bill  against  the  debtor  and  his  fraudulent  assignee. — 
^  Dorr  V.  Noxon,  5  How.  Pr.,  29. 

242.  Witnesses  may  be  required  fo  appeA-  and  testify  before  the 
judge,  or  referee,  upon  any  proceeding  under  this  chapter  in  the  same 
manner  as  upon  the  trial  of  an  issue.  '    "N 

243.  The  judge  or  referee  may  orde^ny  property  of  the  judg- 
ment debtor,  not  exempt  from  execution^^  the  hands  of  such  debtor 
or  any  other  person,  or  due  to  the  judgment  debtor,  to  be  apphed  toward 
the  satisfaction  of  the  judgment ;  except  that  the  earnings  of  the  debtor 
for  his  personal  services,  at  any  time  "svithui  thirty  days  next  preceding 
the  order  shall  not  be  so  applied,  when  it  shall  be  made  to  appear  by  the 
debtor's  affidavit,  or  otherwise,  that  such  earnings  are  necessary  for 
the  use  of  a  family  supported  wholly  or  partly  by  his  labor. 

1.  Where  an  order  for  the  examination  of  persons  indebted  to  a  judgment  debtor 
was  made,  and  it  appeared  upon  the  appearance  of  the  parties  for  examination,  that  the 
debtor  was  dead  at  the  time  when  the  order  was  made,  held,  that  the  proceedings  were 
abated  by  his  death. — Hasewell  v.  Penman,  2  Abbott,  230. 

'?  244.     If  it  appear  that  a  person  or  corporation  alleged  to  have 

property  of  the  judgment  debtor,  or  indebted  to  him,  claims  an  interest 
in  the  property  adverse  to  him,  or  denies  the  ^ebt,  the  court  or  judge 
may  authorise,  by  an  order  made  to  that  eflfect,  the  judgment  creditor 
■  to  institute  an  action  against  such  person  or- 'corporation,  for  the  re- 
covery of  such  interest  or  debt ;  and  the  court  or  judge  may,  by  an  order, 
I  •  forbid  a  transfer  or  other  disposition  of  such'^terest  or  debt,  until  an 

;  action  can  be  commenced  and  prosecuted  to  ''judgment.     Such  order 

may  be  modified  or  vacated  by  the  judge  granting  the  same,  or  the 
court  in  which  the  action  is  brought,  at  any  tkne,  upon  such  terms  as 
may  be  just.  ' 

245.  If  any  person,  party  or  witnes^'disol^ey  an  order  of  the  ref- 
eree, properly  made  in  the  proceedings  bifore'him  under  this  chapter, 
he  may  be  punished  by  the/court  or  jud*e  ordering  the  reference,  for 
a  contempt. 

1.  It  is  contempt  for  a  party  to  refuse  to  obey  or  answer  the  writ  on  the  ground 
that  he  is  a  witness  attending  on  another  court. — Paye  v.  liumlall,  6  Cal.,  32. 


§246  FORECLOSURE   OF   MORTGAGES.  147 


TITLE    V^III. 

ACTIONS  IN  PARTICULAR  CASES. 

CHAPTER    I. 

ACTIONS  FOR  THE  FORECLOSURE  OF  MORTGAGES. 
ft, 

246.  In  an  action  for  tTie  foreclosure  or  satisfaction  of  a  mortgage  /  ^^^ 
of  real  property,  or  the  satisfaction  of  a  lien  or  incumbrance  upon  prop- 
erty, real  or  personal,  the  court  shall  have  power  by  its  judgment  to 
direct  a  sale  of  the  property,  or  any  part  of  it ;  the  application  of  the 
proceeds  to  the  payment  of  the  amount  due  on  the  mortgage,  lien  or 
incumbrance,  with  costs,  and  execution  for  the  balance.      (S~  >>  /   / 

1 .  Where  the  complaint  does  not  charge  the  mortgagee  in  possession  with  negli- 
gence or  improper  conduct,  in  leasing  the  premises,  but  requires  him  to  account  for  the 
rents  he  actually  received,  it  is  proper  in  the  court  to  refuse  to  instruct  the  jury  that  he 
might  have  leased  the  property  differently,  and  to  charge  him  with  what  he  might 
have  received,  if  so  leased. — Benham  v.  Rowe,  2  Cal.,  387. 

2.  Where  a  power  of  sale  is  continued  in  a  mortgage,  and  under  a  sale  by  virtue  of 
such  power,  the  mortgagee  becomes  the  purchaser,  the  equity  of  redemption  still  at- 
taches to  the  property  in  favor  of  the  mortgagor.  In  such  case  the  mortgagor  has  a  clear 
right  to  redeem — Ih. 

3.  The  purchaser  of  a  mortgage  is  subrogated  to  the  rights  of  the  mortgagee. — John- 
son V.  Dopkitis,  3  Cal.,  391. 

4.  A  conveyance  of  real  estate,  conditioned  to  be  void  on  the  payment  of  a  given 
sum  of  money  on  a  given  day,  otherwise  to  be  and  remain  in  full  force  and  virtue,  is  a 
mortgage  and  not  a  conditional  sale. — Ferguson  v.  Miller,  4  Cal.,  97. 

5.  An  unrecorded  mortgage  has  priority  over  a  mechanic's  lien,  which  attached 
subsequently  to  the  execution  of  the  mortgage,  if  the  mechanic  had  notice  thereof. — 
Rose  V.  Munie,  4  Cal.,  173.    "[See  act  passed  18.57-58,  explaining  the  same.] 

6.  In  an  action  of  ejectment,  brought  by  a  purchaser  at  sheriff's  sale,  under  a  decree 
of  foreclosure  and  sale  of  mortgaged  premises,  to  recover  the  same  against  the  mort- 
gagor in  possession,  the  mortgagor  is  estopped  from  setting  up  title  in  another,  as  a  de- 
fense to  the  action. — Redman  v.  Bellamy,  4  Cal.,  247. 

7.  An  action  will  not  lie  on  the'mcre  recital  in  a.mortgage  of  the  existence  of  a  debt. 
In  an  action  upon  a  promise  to  p»y  money,  if  the?  complaint  contains  no  averment  of 
consideration,  or  of  indebtedness  except  by  way  of  recital,  it  is  insufficient. — S/ia/er  v. 
Bear  River  and  Auburn  Company,  4  Cal.,  294. 

8.  A  defendant  can  show  on  cross-examination  that  a  mortgage  has  been  satisfied, 
to  contradict  possession  under  a  mortgage. — Ohenery  v.  Palmer,  5  Cal.,  131. 


148  FORECLOSURE   OF   MORTGAGES.  §24(3 

9.  A  mortgage  is  a  mere  incident  to  the  debt  whicii  it  secures,  and  follows  the  trans- 
fer of  a  note  with  the  full  effect  of  a  regular  assignment. — Orel  v.  McKee,  5  Cal.,  515  ; 
Bennett  v.  Tai/Ior,  5  Cal.,  502  ;  Bennett  v.  Solomon,  6  Cal.,  1.34 ;  Phelan  v.  Olnei/,  6  Cal., 
478. 

10.  A  writ  of  assistance  will  lie  to  put  purchaser  under  foreclosure,  in  possession. 
Wolfv.  Fleischacker,  5  Cal.,  244. 

11.  The  appellate  court  will  not  disturb  an  amended  decree  for  alleged  irregularity, 
if  it  is  what  ihe  original  decree  should  have  been. —  Gronjier  v.  Minturn,  5  Cal.,  492. 

12.  Five  per  cent,  counsel  fee  is  not  in  the  nature  of  a  penalty,  but  only  a  provision 
against  actual  expense. — Carn'ere  v.  Minturn,  5  Cal.  435. 

13.  The  usual  and  best  method  in  actions  for  a  foreclosure,  is  to  appoint  a  master 
to  find  and  report  the  amount  due. —  Guy  v.  Franklin,  5  Cal.,  416. 

14.  In  entering  a  judgment,  the  correct  rule  is  to  add  the  interest  due  on  the  note 
up  to  the  time  of  the  judgment,  to  the  principal,  and  enter  the  judgment  for  the  gross 
amount,  and  such  judgment  is  then  to  bear  the  same  interest  as  the  notes  until  paid, 
although  it  appears  as  compounding  interest. — lb. ;  Emeric  v.  Tarns,  6  Cal.,  155. 

15.  Where  a  new  note  on  tiie  same  terms,  between  the  same  parties,  for  the  same 
sum  and  of  the  same  date,  is  given  as  a  substitute  for  a  previous  note  secured  by  mort- 
gage, the  owner  is  entitled  to  a  foreclosure  on  the  new  note. — Spring  v.  Hill,  6  Cal.,  17. 

16.  A  bill  in  chancery,  in  the  nature  of  a  bill  of  peace,  and  praying  for  a  discovery 
against  joint  and  several  trespassers  on  real  estate,  will  not  lie  in  favor  of  a  plaintiff  out 
of  possession  claiming  title  to  the  land. — Ritdiie  v.  Dorland,  6  Cal.,  33. 

17.  A  mortgage  of  the  defendant  in  execution  who  has  failed  to  record  his  mort- 
gage until  after  the  sale,  has  no  lien  or  intervening  rights  as  against  the  purchaser  ;  he 
can  only  redeem  under  the  statute. — Smith  v.  Randall,  6  Cal.,  47. 

18.  Production  of  a  note  and  mortgage,  and  proof  of  service  of  summons,  is  suffi- 
cient to  justify  a  decree  of  foreclosure  on  default. — Smith  v.  Harlan,  6  Cal.,  173. 

19.  Our  statute  forbids  the  mortgagee  from  recovering  the  mortgaged  estate  without 
action,  and  confines  his  remedy  to  foreclosure.  Therefore  he  has  no  right  to  the  ap- 
pointment of  a  receiver  of  rents  and  profits  pending  the  litigation. —  Gui/  v.  Lie,  6 
Cal.,  99. 

20.  If  the  complaint  refers  to  the  mortgage,  a  copy  of  which  is  thereto  annexed 
containing  a  description  of  the  land,  it  is  a  sufficient  description  for  the  purposes  of  the 
action. — Emeric  v.  Tarns,  6  Cal.,  155  ;  Beiri  v.  Minturn,  (1856,  not  reported.) 

21.  The  record  of  a  mortgage,  the  certificate  of  which  does  not  state  that  the  person 
was  known  to  the  notary  to  be  the  person,  &c.,  is  not  notice  of  title  to  third  parties. — 
Wolfv.  Foyarty,  6  Cal.,  224  ;  Kelsey  v.  Dunlap,  7  ib.,  Jan.  T. 

22.  A  mortgage  claim  upon  the  property  of  a  deceased  person  must  be  presented  to 
the  executors  and  administrators  for  allowance,  in  the  same  manner  as  any  other  claim. 
Ellisen  v.  Halkck,  6  Cal.,  386  ;  Falkner  v.  Folsom,  ib.,  412. 

23.  It  is  not  the  province  of  the  mechanic  in  the  case  of  a  subse(|uent  lion,  to  test 
the  legality  of  a  recorded  title  ;  but  having  contracted  with  notice  of  the  encumbrances, 
he  is  postponed  until  they  are  paid. — Fcnjuson  v.  Miller,  6  Cal.,  402. 

24.  Parol  evidence  is  inadmissible  to  prove  an  absolute  deed  to  have  been  intended 
as  a  mortgage,  without  alleging  and  proving  fraud,  mistake  or  accident  in  the  creation 
of  the  instrument. — Lee  v.  Evans,  7  Cal.,  Oct.  T. ;  Low  v.  Henry,  8  Cal.,  Ai)ril  T. 


§249  NUISANCE,   AVASTE   AND   TRESPASS.  149 

25.  The  sale  of  tlie  mortgat^ed  premises  as  such,  only  follows  the  express  decree  of 
the  court  foreclosing  tlie  eijnity  of  redeinjition. — Low  v.  Jftnnj,  8  Cal.,  April  T. 

26.  A  decree  for  the  sale  of  mortgaged  j)remi«es  when  the  mortgagor  is  dead, 
should  not  he  sought  in  the  probate  court,  but  in  the  district  courts. — Belloc  v.  Rogers, 
8  Cal.,  Jan.  T. 

27.  Under  a  mortgage  foreclosure  and  sale,  a  tenant  in  possession  who  ha^  been 
made  a  party,  is  bound  to  allow  to  the  purchaser,  or  be  removed  by  writ  of  assistance 
notwithstanding  he  claims  under  an  unexpired  lease  of  several  years,  executed  by  the 
mortgagors  previous  to  the  date  of  the  mortgage  foreclosed. — Lovctt  v.  German  Ref. 
Church,  9  How.  Vw,  220. 

28.  The  owner  of  the  equity  of  redemption  is  a  necessary  party  to  a  suit  on  fore- 
closure.—//«//  v.  Xeltion,  23  Barb.,  88. 

247.  If  there  be  surplus  money  remaining  after  payment  of  the 
amount  due  on  the  mortgage,  hen  or  incumbrance,  with  costs,  the 
court  may  cause  the  same  to  be  paid  to  the  person  entitled  to  it,  and 
in  the  meantime  may  direct  it  to  be  deposited  in  court. 

248.  If  the  debt  for  which  the  mortgage,  lien  or  incumbrance  is 
held,  be  not  all  due,  so  soon  as  sufficient  of  the  property  has  been  sold 
to  pay  the  amount  due,  with  costs,  the  sale  shall  cease ;  and  after- 
wai'ds,  as  often  as  more  becomes  due,  for  principal  or  interest,  the 
court  may,  on  motion,  order  more  to  be  sold.  But  if  the  property 
cannot  be  sold  in  portions,  without  injury  to  the  parties,  the  whole  may 
be  ordered  to  be  sold  in  the  first  instance,  and  the  entire  debt  and 
costs  paid,  there  being  a  rebate  of  interest  where  such  rebate  is 
proper.       ^.  /i^  .       ^,^a^. 

1.  A  defendant  cannot  object  that  his  wife,  who  joined  in  executing  the  mortgage 
is  not  made  a  co-defendant. — Powell  v.  Boss,  4  Cal.,  197. 

2.  In  a  suit  to  foreclose  a  mortgage,  an  adverse  claimant  cannot  be  made  a  party 
for  the  purpose  of  testing  the  validity  of  his  adverse  title. —  Corninrj  v.  Smith,  2  Seld.,  82. 


CHAPTER  II. 

ACTIONS    FOR   NUISANCE,  WASTE  AND  WILLFUL    TRESPASS,  IN    CERTAIN 
CASES,    ON    REAL    PROPERTY. 

249.  Anything  which  is  injurious  to  health,  or  indecent,  or  oifen- 
sive  to  the  senses,  or  an  obstruction  to  the  free  use  of  property,  so  as 
to  interfere  with  the  comfortable  enjoyment  of  life  or  property,  is  a 
nuisance,  and  the  subject  of  an  action.     Such  action  may  be  brought 


150  XUISAXCE,    WASTE    AND    TRESPASS.  §2oO 

by  any  person  whose  property  is  injuriously  affected,  or  whose  per- 
sonal enjoyment  is  lessened  by  the  nuisance  ;  and  by  the  judgment  the 
nuisance  may  be  enjomed  or  abated,  as  well  as  damages  recovered, 

1.  The  right  to  recover  for  use  and  occnpation  is  founded  alone  on  contract, 
A  trespass  dies  with  the  trespasser. — 0' Conner  \.  Corbitt,  3  Cal.,  370. 

2.  A  person  in  authority,  who  destroys  the  house  of  another  in  good  faith,  and 
under  apparent  necessity,  during  the  time  of  a  conflagration,  for  the  purpose  of  saving 
the  buildings  adjacent,  and  stopping  its  progress,  is  not  personally  liable  in  an.  action 
by  the  owner  of  the  property  destroyed. — Dnnbar  v.  San  Francisco,  1  Cal.,  355  ;  Suroc- 
co  v.  Geary,  3  Cal.,  69. 

3.  The  common  law  remedy  in  the  abatement  of  nuisances,  still  remains  in  those 
cases  not  embraced  in  the  statute. — Stiles  v.  Luird,  5  Cal.,  120. 

250.  If  a  guardian,  tenant  for  life  or  years,  joint  tenant,  or  tenant 
in  common  of  real  property,  commit  waste  thereon,  any  person  ag- 
grieved by  the  waste  may  bring  an  action  against  him  therefor,  in 
which  action  there  may  be  judgment  for  treble  damages, 

251.  Any  person  who  shall  cut  down,  or  carry  off  any  wood  or 
underwood,  tree  or  timber,  or  girdle  or  otherwise  injure  any  tree  or 
timber  on  the  land  of  another  person,  or  on  the  street  or  highway  in 
front  of  any  person's  house,  village  or  city  lot,  or  cultivated  grounds ; 
or  on  the  commons  or  pubUc  grounds  of  any  city  or  town  ;  or  on  the 
street  or  highway  in  front  thereof,  without  lawful  authority,  shall  be 
liable  to  the  owner  of  such  laad,  or  to  such  city  or  town,  for  treble  the 
amount  of  damages  whichjmay  be  assessed  therefor,  in  a  cinl  action, 
in  any  court  ha\-ing  jurismction, 

252.  Nothing  in  tly  last  section  shall  authorize  the  recovery  of 
more  than  the  just  value  of  the  timber  taken  from  uncultivated  wood- 
land, for  the  repair  of  a  pubUc  highway  or  bridge  upon  the  land,  or 
adjoining  it. 

253.  If  a  person  recover  damages  for  a  forcible  or  unlawful  entry 
in  or  upon,  <^r  detention  of,  any  building  or  any  cultivated  real  prop- 
ertv,  judgment  may  be  entered  for  three  times  the  amoimt  at  which 
the  actual  damages  are  assessed. 

1.  The  demand  for  treble  damag«s  must  be  expressly  inserted  in  the  declaration. — 
Chipman  v.  Eineric,  5  Cal.,  239. 


^ 


§2o4        '^  CONFLICTING   CLARIS   TO   REAL   PROPERTY.  lol 

CHAPTER  III.     j     --^^t-v^^"  o^  ^''^-U.^y^LryY^ 

ACTIONS  TO  DETERMINE  CONFLICTING  CLAIMS  TO  REAL  PROPERTY,  AND        ^ 
OTHER  PROVISIONS  RELATING  TO  ACTIONS  CONCERNING 

REAL    ESTATE.  n 

I  i 

254.     An  action  may  be  brought  by  any  person  (a)  in  possession,  *^ 

by  himself  or   his  tenant,  of  real  property,  against   any   person  who  N^ 

claims  an  estate  or  interest  therein  adverse  to  him,  for  the  purpose  of  r  X 
determinmg  such  adverse  claim,  estate  or  interest.  ^ 

1.  Sustained. — Merced  Mrning  Co.  v.  Fremont,  7  Cal.,  April  T.  ^J"^ 

2.  A  person  cannot  be  dispossessed  of  his  property  under  an  order  of  court  proceed-  ^  '^ 
in<r  ex  parte  on  the  statement  of  the  ph\intifF,  and  without  citation  or  notice  to  the  de-  ^  "< 
fendant. — Ladclw.  Stevenson,  1  Cal.,  18.  ,     ^ 

3.  In  an  action  for  the  recover}-  of  land,  if  the  plaintiff  proves  no  title,  the  defend-  '  X'  i^j^ 
ants  being  in  possession  cannot  be  ousted  ;  but  if  the  defendants  have  entered,  claiming  1  ^~  ^ 
under  the  plaintiff  and  in  subordination  to  his  title,  they  are  estopped  from  questioning  • 
it. — Hoen  x.  Simmons,  1  Cal.,  119.  .^ 

4.  A  deed  purporting  to  convey  real  estate,  executed  by  an  agent  or  attorney  in  his  ^ 
own  nsime,  instead  of  the  name  of  his  principal,  is  not  binding  upon  the  latter,  and  does  <n^ 
not  transfer  the  title  of  the  property. — Fisher  v.  Salmon,  1  Cal.,  413.  . 

5.  A  party  already  having  the  legal  and  equitable  title,  cannot  sue  for  a  further 
conveyance. — Truebody  v.  Jacobson,  2  Cal.,  82.  ^v 

6.  In  a  possessory  action  it  is  sufficient  for  the  plaintiff  to  state  that  he  was  lawfully  vT 
entitled  to  the  possession  of  the  premises,  without  setting  out  the  evidence  of  his  right.  v^ 
Godwin  V.  Stelibins,  2  Cal.,  103.                                           \  '^ 

7.  A  vendor  has  a  lien  on  the  land  sold,  for  the  pdrchase  money,  unless  he  has  ^^js^ 
taken  security  for  its  payment,  though  he  has  executed  the  conveyance.  ^ 

And  where  he  has  not  conveyed  the  title,  his  position  is  analagous  to  that  of  a  mort-  A 

gagee.  } 

A  purchaser  in  possession  cannot  reclaim  the  purchase  money  on  account  of  defect  P 

in  the  title,  unless  he  has  been  evicted  or  disturbed.  J> 

A  party  cannot  ask  the  recision  of  a  contract  on  account  of  an  obstacle  to  its  com-  V^ 

pletion,  caused  by  his  o\vn  fault. 

Caveat  emptor  applies  in  sales  of  real  estate,  where  there  is  no  fraud,  warranty,  &c. — 
Salmon  v.  Hoffman,  2  Cal.,  138. 

[a)     Statutes  of  1857,  62. 
An  Act  roncernin(]  tenants  in  common,  joint  tenants  and  coparceners,  passed  Mar.  6,  1857. 
1.     All  persons  holding  as  tenants  in  common,  or  joint  tenants,  or  coparceners,  or 
any  number  less  than  all.  may  jointly  or  severally  bring  or  deft-nd  any  civil  action  for 
the  enforcement  or  protection  of  the  rights  of  such  parry. 


^-^ 


152  CONFLICTING  CLAIMS  TO  REAL  PROPERTY.         §254 

8.  Where  the  title  of  the  phiintiff  is  inclioate  and  incom])lete,  he  cannot  sustain  an 
ejectment,  and  the  court  jiroperly  rejected  such  title  as  testimony. — Zee.se  v.  Clarke,  ■"? 
CaL,  18. 

9.  To  sustain  a  grant  from  a  town,  it  is  necessary  to  show  that  the  hinds  granted 
were  the  property  of  the  town. 

Wiicn  sudi  grant  contains  a  surplus,  the  title  is  good  for  the  wliole  lot,  defeasible  for 
the  surplus. —  V<inderslke  v.  Hanks,  3  Cal.,  28  ;  Touchard  v.  Touchard,  5  Cal.,  306. 

10.  A  deed  of  "  one-half  my  lot,"  accompanied  by  proof  that  the  grantor  owned  at 
the  time  but  one  lot  in  the  j)hice,  is  not  void  for  uncertainty  in  the  description. 

But  if  such  deed  is  not  void,  it  can  onl_v  convey  an  undivided  half  of  the  said  lot, 
and  the  gi'antce  can  only  take  as  tenant  in  common  with  the  grantor. 

One  tenant  in  common  cainiot  sustain  an  action  of  forcible  entry  and  detainer  against 
another  for  holding  over.  He  must  tirst  resort  to  a  court  of  equity  for  a  partition  of  tiic 
land  in  diq)ute.— Z/V/,-  v.  U'Doiintll,  3  Cal.,  59. 

11.  A  party  is  not  allowed  to  controvert  the  declaration  he  has  made  by  deed. — Tar- 
tar V.  Hall,  3  Cal.,  263. 

12.  By  the  laws  of  Mexico  towns  were  invested  with  the  ownership  of  lands. 

By  the  laws,  usage,  and  customs  of  Mexico,  the  alcaldes  were  tiie  heads  of  the  ayun- 
tamicntos  or  town  councils  ;  were  the  executive  otKcers  of  the  towns,  and  rightfully 
exercised  the  power  of  granting  lots  within  the  towns,  which  were  the  property  of  the 
towns. —  Cohas  v.  liaisin,  3  Cal.,  443  ;  Stale  v.  Mitrlull,  5  Cal.,  401;  Coddinrjtoii  v. 
McHenrif,  (185.5,  not  reported. J 

13.  Possession  is  always  prima  facie  evidence  of  title,  and  proof  of  prior  possession 
is  enough  to  maintain  ejectment  against  a  mere  naked  trespasser.  . 

The  allegation  of  possession  at  the  time  of  the  ouster  complained  of,  is  a  sufficient 
allegation  of  title  to  sustain  the  declaration. — ILifchinson  v.  Perleij,  4  Cal.,  33;  Plume 
v.  Si-ward,  4  Cal.,  94. 

14.  In  actions  for  the  recovery  of  land,  possession  is  prima  facie  evidence  of  title, 
and  this  principle  is  (irmly  fixed  in  all  common  law  jurisprudence. — IJickt:  v.  Davis,  4 
Cal.,  67. 

15.  Possession  coupled  with  tlie  color  of  title,  must  prevail  except  where  a  better 
title  is  shown  in  the  defendants  ;  and  where  a  plaintiff  in  ejectment  pleads  a  fee  simple 
title,  he  is  not  compelled  to  prove  the  same,  but  can  properly  rely  on  prior  possession 
if  he  choose  to  do  so. —  Wiiiaim  v.  Christy,  4  Cal.,  70. 

16.  A  vendor  of  real  estate  who  makes  no  conveyance,  but  gives  a  bond  conditioned 
for  the  execution  of  a  conveyance,  on  payment  of  the  purchase  money  by  tiie  vendee, 
has  an  eipiitablc  lien  on  the  land  for  the  purchase  money,  and  holds  the  legal  title  as  a 
security  for  the  enforcement  of  his  lien. —  (Joiildin  v.  Buckelew,  4  Cal.,  107. 

n.'  Where  a  tract  of  land  sold  for  a'gross  surh  is  described  by  specific  boundaries, 
and  as  containing  so  many  acres,  more  or  less,  the  vendor  cannot  recover  for  the  over- 
plus, if  in  a  survey  it  can  be  ascertained  that  more  land  is  contained  in  the  tract  than 
the  precise  amount  in  the  deed. —  Chiji'man  v.  Bri//t/s,  5  Cal.,  76. 

18.  The  fact  of  prior  j)Osscssion  being  evidence  of  title,  is  not  for  a  jury  to  deter- 
mine, it  is  so  declared  i)y  law. —  Castro  v.  (till,  5  Cal.,  40. 

19.  Where  two  parties  rely  upon  jjossession  solely,  as  proof  of  title,  tiie  i)rcsumiilion 
of  ownership  is  in  favor  of  the  first  possessor. — Potter  v.  Knoulcs,  5  Cal.,  87. 

20.  To  enable  the  plaintitV  to  recover  in  an  action  of  ejectment,  founded  on  prior 


§259  CONFLICTING    CLAIMS   TO   REAL   PROPERTY.  153 

possession,  he  must  allege  and  prove  an  actual  ouster  by  defendants,  or  those  under 
whom  he  holds. — Pmjw  v.  TrcadiceU,  5  Cal.,  310;    Watson  v.  Zimmerman,  6  Cal.,  46. 

21.  Prior  possession  will  entitle  the  possessor  to  maintain  an  action  against  a  tres- 
passer.— Grover  v.  Ilaicley,  5  Cal.,  485  ;  Merced  Mlniiiij  Co.  v.  Fremont,  7  Cal.,  Apr.  T. 

22.  In  many  cases  it  is  a  question  of  fact,  what  is  an  actual  and  what  a  constructive 
possession. — O'CuUaghan  v.  Booth,  6  Cal.,  63. 

23.  A  trespass  against  one  defendant  may  be  sustained,  although  a  declaration  may 
aver  joint  trespass  on  the  part  of  several.  Possession  is  sufficient  to  enable  a  recover}^ 
against  a  trespasser,  and  although  a  higher  title  may  be  attempted  to  be  set  up,  the  fail- 
ure to  sustain  it  will  not  operate  against  the  right  to  recover  damages. — McCarron  v. 
O'Connell,  7  Cal.,  Jan.  T. 

255.  If  the  defendant  in  such  action  disclaim  in  his  answer,  any 
interest  or  estate  in  the  property,  or  suffer  judgment  to  be  taken  against 
him  without  answer,  the  plaintiff  shall  not  recover  costs. 

256.  In  an  action  for  the  recovery  of  real  property,  where  the 
plaintiff  shows  a  right  to  recover  at  the  time  the  action  was  commenced, 
but  it  appears  that  his  right  has  terminated  during  the  pendency  of  the 
action,  the  verdict  and  judgment  shall  be  according  to  the  fact ;  and 
the  plaintiff  may  recover  damages  for  withholding  the  property. 

257.  When  damages  are  claimed  for  withholding  the  property 
recovered,  upon  which  permanent  improvements  have  been  made  by 
a  defendant,  or  those  under  whom  he  claims,  holding  under  color  of 
title  adversely  to  the  claims  of  the  plaintiff,  in  good  faith,  the  value 
of  such  improvements  shall  be  allowed  as  a  set-off  against  such  damages. 

1.     Sustained.— Forcif  v.  Holton,  5  Cal.,  319  ;    Welsh  v.  SuIUvan,  7  Cal.,  Oct.  T. 

258.  The  court  in  which  an  action  is  pending  for  the  recovery  of     •/  *'^^ 
real  property,  may  on  motion,  upon  notice  by  either  party,  for  good 
cause  shown,  grant  an  order  allowing  to  such  party  the  right  to  enter  ^ 
upon  the  property,  and  make  survey  and  measurement  thereof,  for  the       ^S"^ 
purposes  of  the  action,    f  ^^^^/r^^ —  C^^^-tyt.  "^    /^-^  O'y'^^Zyfr^^u,'^  — 

259.  The  order  shall  describe  the  property,  and  a  copy  thereof 
shall  be  served  on  the  owner  or  occupant ;  and  thereupon  such  party 
may  enter  upon  the  property,  with  necessary  surveyors  and  assist- 
ants, and  may  make  such  survey  and  measurements ;  but  if  any 
unnecessary  injury  be  done  to  the  property,  he  shall  be  liable  therefor. 

E 


154  PARTITION  OF  REAL  PROPERTY.  §260 

200.  A  mortgage  of  real  property  shall  not  be  deemed  a  convey- 
ance, whatever  its  terms,  so  as  to  enable  the  owner  of  the  mortgage  to 
recover  possession  of  the  real  property  without  a  foreclosure  and  sale. 

261.  The  court  may,  by  injunction,  on  good  cause  shown,  restrain 
the  party  in  possession  from  doing  any  act  to  the  injury  of  real  prop- 
erty during  the  foreclosure  of  a  mortgage  thereon  ;  or  after  a  sale  on 
execution  before  a  conveyance. 

262.  When  real  property  shall  have  been  sold  on  execution,  the 
purchaser  thereof,  or  any  person  who  may  have  succeeded  to  his  inter- 
est, may,  after  his  estate  becomes  absolute,  recover  damages  for  in- 
jury to  the  property  by  the  tenant  in  posssession,  after  sale  and  before 
possession  is  delivered  under  the  conveyance. 

263.  An  action  for  the  recovery  of  real  property  against  a  person 
in  possession,  cannot  be  prejudiced  by  any  alienation  made  by  such  per- 
son, either  before  or  after  the  commencement  of  the  action. 


CHAPTER  IV. 

ACTIONS   FOR   THE   PARTITION   OF   REAL   PROPERTY. 

264.  [1854.]  When  several  persons  hold  and  are  in  possession 
of  real  property,  as  joint  tenants,  or  as  tenants  in  common,  in  which 
one  or  more  of  them  have  an  estate  of  inheritance,  or  for  hfe  or  lives, 
or  for  years,  an  action  may  be  brought  by  one  or  more  of  such  per- 
sons for  a  partition  thereof,  according  to  the  respective  rights  of  the 
persons  interested  therein  ;  and  for  a  sale  of  such  property,  or  a  part 
of  it,  if  it  appear  that  a  partition  cannot  be  made  without  great  preju- 
dice to  the  owners. 

I.  A  suit  for  the  partition  of  lands  is  a  regular  proceeding,  and  may  be  prosecuted 
by  summons  and  complaint. — Myers  v.  Rashack,  4  How.  Pr.,  63. 

265.  The  interests  of  all  persons,  in  the  property,  whether  such 
persons  be  known  or  unknown,  shall  be  set  forth  in  the  complaint  specif- 
ically and  particularly,  as  far  as  known  to  the  plaintiff ;  and  if  one  or 
more  of  the  parties,  or  the  share  or  quantity  of  interest  of  any  of  the 
parties,  be  unkno^^Tl  to  the  plaintiff,  or  be  uncertaui  or  contingent,  or 


§270  PARTITION  OF  REAL  PROPERTl  .  155 

the  ownership  of  the  inheritance  depend  upon  an  executory  devise,  or 
the  remainder  be  a  contingent  remainder,  so  that  such  parties  cannot 
be  named,  that  fact  shall  be  set  forth  in  the  complaint. 

266.  No  persons  who  have  or  claim  any  liens  upon  the  property,  by 
mortgage,  judgment,  or  otherwise,  need  be  made  parties  to  the  action, 
unless  such  liens  be  matters  of  record. 

267.  Immediately  after  filing  the  complaint,  the  plaintiff  shall  file 
with  the  recorder  of  the  county  in  which  the  property  is  situated,  a 
notice  of  the  pendency  of  the  action,  containing  the  names  of  the  parties 
so  far  as  known,  the  object  of  the  action,  and  a  description  of  the  prop- 
erty to  be  affected  thereby.  From  the  time  of  the  filing,  it  shall  be 
deemed  notice  to  all  persons. 

268.  The  summons  shall  be  directed  to  all  the  joint  tenants  and 
tenants  in  common,  and  all  persons  having  any  interest  in,  or  any  liens 
of  record  by  mortgage,  judgment  or  otherwise,  upon  the  property,  or 
upon  any  particular  portion  thereof ;  and  generally,  to  all  persons  un- 
known, who  have  or  claim  any  interest  in  the  property. 

1.  Two  corporations  cannot  hold  land  together  as  joint  tenants.  DeWitt  v.  City  of 
San  Francisco,  2  Cal.,  289. 

269.  If  a  party  having  a  share  or  interest  is  unknown,  or  any  one 
of  the  known  parties  reside  out  of  the  state,  or  cannot  be  found  therein, 
and  such  fact  is  made  to  appear  by  afiidavit,  the  summons  may  be 
served  on  such  absent  or  unknown  party,  by  publication,  as  in  other 
cases.  When  publication  is  made,  the  summons,  as  published,  shall  be 
accompanied  by  a  brief  description  of  the  property  which  is  the  subject 
of  the  action. 

See  Sec.  31. 

270.  The  defendants  who  have  been  personally  served  with  the 
summons,  and  a  certified  copy  of  the  complaint,  shall  set  forth  in  their 
answers,  fully  and  particularly,  the  nature  and  extent  of  their  interest 
in  the  property ;  and  if  such  defendants  claim  a  lien  upon  the  prop- 
erty, by  mortgage,  judgment,  or  otherwise,  they  shall  state  the  amount 
and  date  of  the  same,  and  the  amount  remaining  due  thereon,  and 
whether  the  amount  has  been  secured  in  any  other  way  or  not ;  and  if 
secured,  the  extent  and  nature  of  the  security  ;  or  they  shall  be  deemed 
to  have  waived  their  right  to  such  lien. 


156  PARTITION    OF    REAL    PROPERTY.  §271 

271.  The  rights  of  the  several  parties,  plaintiffs  as  well  as  defend- 
ants, may  be  put  in  issue,  tried  and  determined  by  such  action  ;  and 
when  a  sale  of  the  premises  is  necessary,  the  title  shall  be  ascertained 
by  proof  to  the  satisfaction  of  the  court,  before  the  judgment  of  sale 
shall  be  made  ;  and  where  service  of  the  complaint  has  been  made 
by  pviblication,  hke  proof  shall  be  required  of  the  right  of  the  absent 
or  unknown  parties,  before  such  judgment  is  rendered  ;  except  that 
where  there  are  several  unknown  persons  ha^ang  an  interest  in  the 
property,  their  rights  may  be  considered  together  in  the  action,  and 
not  as  between  themselves. 

272.  The  plaintiff  shall  produce  to  the  court,  on  the  hearing  of  the 
case,  the  certificate  of  the  recorder  of  the  county  where  the  property 
is  situated,  showing  whether  there  were  or  not  any  liens  outstanding 
of  record  upon  the  property,  or  any  part  thereof,  at  the  time  of  the 
commencement  of  the  action. 

273.  If  it  appear  by  the  certificate  of  the  recorder  that  there  were 
outstanding  liens  of  record  at  the  time  of  the  commencement  of  the 
action,  and  the  persons  holding  or  claiming  such  hens  are  not  made 
parties  to  the  action,  the  court  shall  either  order  such  parties  to  be 
brought  in  by  an  amendment,  or  supplemental  complaint,  or  appoint  a 
referee  to  ascertahi  whether  then-  liens  have  been  paid;  or  if  not  paid, 
what  amount  remains  due,  and  their  order  among  the  liens  held  by  the 
parties  who  have  appeared  and  answered  ;  and  whether  the  amount 
remaining  due  thereon  has  been  secured  in  any  way,  and  if  secured, 
the  extent  and  nature  of  the  security. 

274.  The  plaintiff  shall  cause  a  notice  to  be  served  a  reasonable 
time  previous  to  the  day  for  appearance  before  the  referee  appointed, 
as  provided  in  last  section,  on  each  person  having  outstanding  hens  of 
record,  who  is  not  a  party  to  the  action,  to  appear  before  the  referee 
at  a  specified  time  and  place,  to  make  proof  by  his  own  affidavit  or 
otherwise  of  the  true  amount  due,  or  to  become  due,  contingently  or  ab- 
solutely thereon.  In  case  such  person  be  absent,  or  his  residence  be 
unkno^vn,  service  may  be  made  by  publication,  or  notice  to  his  agents, 
under  the  direction  of  the  court,  in  such  manner  as  may  be  proper. 
The  report  of  the  referee  thereon  shall  be  made  to  the  court,  and  shall 


§278  PARTITION   OF   REAL    PROPERTY.  157 

be  confirmed,  modified,  or  set  aside,  and  a  new  reference  ordered,  as 
the  justice  of  the  case  may  require. 

275.  If  it  be  alleged  in  the  complaint,  and  be  established  by  evi- 
dence, or  if  it  appear  by  the  evidence  without  such  allegation  in  the 
complaint,  to  the  satisfaction  of  the  court,  that  the  property,  or  any 
part  of  it,  is  so  situated  that  partition  cannot  be  made  Avithout  great 
prejudice  to  the  owners,  the  court  may  order  a  sale  thereof.  Other- 
wise, upon  the  requisite  proofs  being  made,  it  shall  order  a  partition, 
according  to  the  respective  rights  of  the  parties,  as  ascertained  by  the 
court,  and  appoint  three  referees  therefor  ;  and  shall  designate  the  por- 
tion to  remain  undivided  for  the  owners  whose  interests  remain  unknown 
or  are  not  ascertained. 

1.  Notice  of  commissioners'  proceedings  in  partition  is  not  required  by  statute  to  be 
given  to  the  parties.  The  parties,  however,  should  have  an  opportunity  to  be  heard 
before  the  commissioners,  before  making  partition.     Itoic  v.  Row,  4  How.  Pr.,  133. 

276.  In  making  the  partition,  the  referees  shall  divide  the  prop- 
erty, and  allot  the  several  portions  thereof  to  the  respective  parties, 
quaUty  and  quantity  relatively  considered,  according  to  the  respective 
rights  of  the  parties,  as  determined  by  the  court,  designating  the  sev- 
eral portions  by  proper  landmarks ;  and  may  employ  a  surveyor,  with 
the  necessary  assistants,  to  aid  them  therein. 

277.  The  referees  shall  make  a  report  of  their  proceedings,  speci- 
fying therein  the  manner  of  executing  their  trust,  describing  the  prop- 
erty di^dded,  and  the  shares  allotted  to  each  party,  with  a  particular 
description  of  each  share. 

278.  The  court  may  confirm  or  set  aside  the  report,  and  if  neces- 
sary, appoint  new  referees.  Upon  the  report  being  confirmed,  judg- 
ment shall  be  rendered  that  such  partition  be  effectual  forever ;  which 
judgment  shall  be  binding  and  conclusive  : 

1st.  On  all  persons  named  as  parties  to  the  action,  and  their  legal 
representatives,  who  have  at  the  time  any  interest  in  the  property  di- 
vided, or  any  part  thereof,  as  owners  in  fee,  or  as  tenants  for  life,  or 
for  years  ;  or  as  entitled  to  the  reversion,  remainder,  or  the  inheri- 
tance of  such  property,  or  of  any  part  thereof  after  the  termination  of 
a  particular  estate  therein ;  and  who,  by  any  contmgency,  may  be  en- 


158  PARTITION  OF  REAL  PROPERTY.  §279 

titled  to  a  beneficial  interest  in  the  propertj,  or  who  have  an  interest 
in  anj  undivided  share  thereof,  as  tenants  for  years  or  for  life  ; 

2d.  On  all  persons  interested  in  the  property,  who  maybe  unknown, 
to  whom  notice  shall  have  been  given  of  the  action  for  partition  by 
publication ;  and, 

3d.  On  all  other  persons  claiming  from  such  parties  or  persons,  or 
either  of  them. 

1 .     The  report  of  commissioners  in  partition  will  be  set  aside  only  upon  grounds 
similar  to  those  upon  which  a  verdict  would  be  set  aside  and  a  new  trial  granted. 
Doubleday  v.  Newton,  9  How.  Pr.,  71. 

279.  But  such  judgment  and  partition  shall  not  affect  tenants  for 
years  less  than  ten,  to  the  whole  of  the  property  which  is  the  subject 
of  the  partition. 

280.  The  expenses  of  the  referees,  including  those  of  a  surveyor 
and  his  assistant,  when  employed,  shall  be  ascertained  and  allowed  by 
the  court ;  and  the  amount  thereof,  togsther  with  the  fees  allowed  by 
law  to  the  referees,  shall  be  apportioned  among  the  different  parties  to 
the  action. 

281.  When  a  hen  is  on  an  undivided  interest  or  estate  of  any  of  the 
parties,  such  lien,  if  a  partition  be  made,  shall  thenceforth  be  a  charge 
only  on  the  share  assigned  to  such  party  ;  but  such  share  shall  be  first 
charged  with  its  just  proportion  of  the  costs  of  the  partition,  in  prefer- 
ence to  such  lien. 

282.  When  a  part  of  the  property  only  is  ordered  to  be  sold,  if 
there  be  an  estate  for  life,  or  years,  in  an  undivided  share  of  the  whole 
property,  such  estate  may  be  set  off  in  any  part  of  the  property  not 
ordered  to  be  sold. 

283.  The  proceeds  of  the  sale  of  the  incumbered  property  shall  be 
applied  under  the  direction  of  the  court,  as  follows : 

1st.  To  pay  its  just  proportion  of  the  general  costs  of  the  action  ; 

2d.  To  pay  the  costs  of  the  reference  ; 

3d.  To  satisfy  and  cancel  of  record  the  several  Hens  in  their  order 
of  priority,  by  payment  of  the  sums  due  and  to  become  due ;  the 
amount  due  to  be  verified  by  affidavit  at  the  time  of  payment ; 


§288  PARTITION  OF  REAL  PROPERTY.  159 

■  4th.  The  residue  among  the  owners  of  the  property  sold,  according 

to  their  respective  shares  therein. 

284.  Whenever  any  party  to  an  action  who  holds  a  lien  upon  the 
property,  or  any  part  thereof,  has  other  securities  for  the  payment  of 
the  amount  of  such  lieu,  the  court  may,  in  its  discretion,  order  such 
securities  to  be  exhausted  before  a  distribution  of  the  proceeds  of  sale, 
or  may  order  a  just  deduction  to  be  made  from  the  amount  of  the  lien 
on  the  property,  on  account  thereof. 

285.  The  proceeds  of  sale,  and  the  securities  taken  by  the  refer- 
ees, or  any  part  thereof,  shall  be  distributed  by  them  to  the  persons 
entitled  thereto,  whenever  the  court  so  directs.  But  in  case  no  direc- 
tion be  given,  all  such  proceeds  and  securities  shall  be  paid  into  court, 
or  deposited  therein,  or  as  directed  by  the  court. 

286.  When  the  proceeds  of  sales  of  any  shares  or  parcels  belong- 
ing to  persons  who  are  parties  to  the  action,  and  who  are  known,  are 
paid  into  court,  the  action  may  be  continued  as  between  such  parties, 
for  the  determination  of  their  respective  claims  thereto,  which  shall  be 
ascertained  and  adjudged  by  the  court.  Further  testimony  may  be 
taken  in  court,  or  by  a  referee,  at  the  discretion  of  the  court,  and  the 
court  may,  if  necessary,  require  such  parties  to  present  the  facts  or 
law  in  controversy,  by  pleadings,  as  in  an  original  action. 

287.  All  sales  of  real  property,  made  by  referees  under  this  chap- 
ter, shall  be  made  by  public  auction  to  the  highest  bidder,  upon  notice 
pubhshed  in  the  manner  required  for  the  sale  of  real  property  on  exe- 
cution. The  notice  shall  state  the  terms  of  sale,  and  if  the  property  or 
any  part  of  it  is  to  be  sold,  subject  to  a  prior  estate,  charge,  or  lien,  that 
shall  be  stated  in  the  notice. 

288.  The  court  shall,  in  the  order  for  sale,  direct  the  terms  of 
credit  which  may  be  allowed  for  the  purchase  money  of  any  portion  of 
the  premises  of  which  it  may  direct  a  sale  on  credit,  and  for  that  por- 
tion of  which  the  purchase  money  is  required,  by  the  provisions  here- 
inafter contained,  to  be  invested  for  the  benefit  of  unknown  owners,  in- 
fants, or  parties  out  of  the  state. 


160  PARTITION  OF  REAL  PROPERTY.  §289 

289.  [1854.]  The  referees  may  take  separate  mortgages  and 
other  securities  for  the  whole  or  convenient  portions  of  the  purchase 
money,  of  such  parts  of  the  property  as  are  directed  by  the  court  to  be 
sold  on  credit,  for  the  shares  of  any  known  owner  of  full  age,  in  the 
name  of  such  owner  ;  and  for  the  shares  of  an  infant  in  the  name  of  the 
guardian  of  such  infant ;  and  for  other  shares  in  the  name  of  the  clerk 
of  the  county  and  his  successors  in  office. 

290.  The  person  entitled  to  a  tenancy  for  life,  or  years,  whose 
estate  shall  have  been  sold,  shall  be  entitled  to  receive  such  sum  as 
may  be  deemed  a  reasonable  satisfaction  for  such  estate,  and  which  the 
person  so  entitled  may  consent  to  accept  instead  thereof,  by  an  instru- 
ment in  writing  filed  with  the  clerk  of  the  court.  Upon  the  filing  of 
such  consent,  the  clerk  shall  enter  the  same  in  the  minutes  of  the  court. 

291.  If  such  consent  be  not  given,  filed  and  entered,  as  provided 
in  the  last  section,  at  or  before  a  judgment  of  sale  is  rendered,  the 
court  shall  ascertain  and  determine  what  proportion  of  the  proceeds  of 
the  sale,  after  deducting  expenses,  will  be  a  just  and  reasonable  sum 
to  be  allowed  on  account  of  such  estate  ;  and  shall  order  the  same  to 
be  paid  to  such  party,  or  deposited  in  court  for  him,  as  the  case  may 
require. 

292.  If  the  persons  entitled  to  such  estate  for  life  or  years  be  un- 
known, the  court  shall  provide  for  the  protection  of  their  rights,  in  the 
same  manner,  as  far  as  may  be,  as  if  they  were  known  and  had  appeared. 

293.  In  all  cases  of  sales,  when  it  appears  that  any  person  has  a 
vested  or  contingent  future  right  or  estate  in  any  of  the  property  sold, 
the  court  shall  ascertain  and  settle  the  proportional  value  of  such  con- 
tingent, or  vested  right  or  estate,  and  shall  direct  such  proportion  of 
the  proceeds  of  the  sale  to  be  invested,  secured  or  paid  over,  in  such 
manner  as  to  protect  the  rights  and  interests  of  the  parties. 

294.  In  all  cases  of  sales  of  property,  the  terms  shall  be  made 
known  at  the  time  ;  and  if  the  premises  consist  of  distinct  farms  or  lots, 
they  shall  be  sold  separately. 

295.  Neither  of  the  referees,  nor  any  person  for  the  benefit  of 


§301  PARTITION  OF  REAL  PROrERTY.  IGl 

either  of  them,  shall  be  interested  in  any  purchase  ;  nor  shall  a  guar- 
dian of  an  infant  party  be  interested  in  the  purchase  of  any  real  prop- 
erty, being  the  subject  of  the  action,  except  for  the  benefit  of  the  infant. 
All  sales  contrary  to  the  provisions  of  this  section  shall  be  void. 

296.  After  completing  a  sale  of  the  property,  or  any  part  thereof 
ordered  to  be  sold,  the  referees  shall  report  the  same  to. the  court,  with 
a  description  of  the  different  parcels  of  land  sold  to  each  purchaser  ; 
the  name  of  the  purchaser  ;  the  price  paid  as  secured  ;  the  terms  and 
conditions  of  the  sale  ;  and  the  securities,  if  any,  taken.  The  report 
shall  be  filed  in  the  office  of  the  clerk  of  the  county  where  the  property 
is  situated. 

297.  If  the  sale  be  confirmed  by  the  court,  an  order  shall  be  en- 
tered, directing  the  referees  to  execute  conveyances  and  take  securi- 
ties pursuant  to  such  sale ;  which  they  are  hereby  authorized  to  do. 
Such  order  may  also  give  directions  to  them  respecting  the  disposition 
of  the  proceeds  of  the  sale. 

298.  When  a  party  entitled  to  a  share  of  the  property,  or  an  incum- 
brancer entitled  to  have  his  lien  paid  out  of  the  sale,  becomes  a  pur- 
chaser, the  referees  may  take  his  receipt  for  so  much  of  the  proceeds 
of  the  sale  as  belongs  to  him. 

299.  The  conveyances  shall  be  recorded  in  the  county  Avhere  the 
premises  are  situated,  and  shall  be  a  bar  against  all  persons  interested 
in  the  property  in  any  way,  who  shall  have  been  named  as  parties  in 
the  action  ;  and  against  all  such  parties  and  persons  as  were  unknown, 
if  the  summons  had  been  served  by  pubhcation,  and  against  all  persons 
claiming  from  them,  or  either  of  them. 

300.  When  there  are  proceeds  of  sale  belonging  to  an  unknown 
owner,  or  to  a  person  without  the  state,  who  has  no  legal  representa- 
tive within  it,  the  same  shall  be  mvested  in  securities  on  interest,  for 
the  benefit  of  the  persons  entitled  thereto. 

301.  When  the  security  of  the  proceeds  of  sale  is  taken,  or 
when  an  investment  of  any  such  proceeds  is  made,  it  shall  be  done, 
except  as  herem  otherwise  provided,  in  the  name  of  the  clerk  of  the 


162  PARTITION  OF  REAL  PROPERTY.  §302 

county  where  the  papers  are  filed  and  his  successors  in  office,  who 
shall  hold  the  same  for  the  use  and  benefit  of  the  parties  interested, 
subject  to  the  order  of  the  court. 

302.  When  security  is  taken  by  the  referees  on  a  sale,  and  the 
parties  interested  in  such  security,  by  an  insti-ument  in  writing  under 
their  hands,  deUvered  to  the  referees,  agree  upon  the  shares  and  pro- 
portions to  which  they  are  respectively  entitled  ;  or,  when  shares  and 
proportions  have  been  previously  adjudged  by  the  court,  such  securi- 
ties shall  be  taken  in  the  names  of,  and  payable  to,  the  parties  respect- 
ively entitled  thereto ;  and  shall  be  delivered  to  such  parties  upon 
their  receipt  therefor.  Such  agreement  and  receipt  shall  be  returned 
and  filled  with  the  clerk. 

303.  The  clerk  in  whose  name  a  security  is  taken,  or  by  whom  an 
investment  is  made,  and  his  successors  in  oflfice,  shall  receive  the  inter- 
est and  principal  as  it  becomes  due,  and  apply  and  invest  the  same  as 
the  court  may  direct ;  and  shall  file  in  his  office  all  securities  taken, 
and  keep  an  account  in  a  book  provided  and  kept  for  that  purpose,  in 
the  clerk's  office,  free  for  inspection  by  all  persons,  of  investments  and 
moneys  received  by  him  thereon,  and  the  disposition  thereof. 

304.  When  it  appears  that  partition  cannot  be  made  equal  between 
the  parties,  according  to  their  respective  rights,  without  prejudice  to 
the  rights  and  interests  of  some  of  them,  and  a  partition  be  ordered  by 
judgment,  the  court  may  adjudge  compensation  to  be  made  by  one 
party  to  another,  on  account  of  the  inequality  of  partition.  But  such 
compensation  shall  not  be  required  to  be  made  to  others,  by  owners 
unknown,  nor  by  infants,  unless,  in  case  of  an  infant,  it  appear  that  he 
has  personal  property  sufficient  for  that  purpose,  and  that  his  interest 
will  be  promoted  thereby. 

305.  When  the  share  of  an  infant  is  sold,  the  proceeds  of  the  sale 
may  be  paid  by  the  referee  making  the  sale  to  his  general  guardian, 
or  the  special  guardian  appointed  for  him  in  the  action,  upon  giving 
the  security  required  by  law,  or  directed  by  order  of  the  court. 

306.  The  guardian  who  may  be  entitled  to  the  custody  and  man- 
agement of  the  estate  of  an  insane  pereon,  or  other  person  adjudged 


§309  PARTITIOX  OF  REAL  PROPERTY.  163 

incapable  of  conducting  his  own  affliirs,  whose  interest  in  real  property- 
shall  have  been  sold,  may  receive,  in  behalf  of  such  person,  his  share 
of  the  proceeds  of  such  real  property,  from  the  referees,  on  executing 
with  s^ifficient  sureties,  an  undertaking  approved  by  a  judge  of  the 
court,  or  bj  a  coimty  judge,  that  he  will  faithfully  discharge  the  trust 
reposed  in  him,  and  will  render  a  true  and  just  account  to  the  person 
entitled,  or  to  his  legal  representative. 

307.  The  general  guardian  of  an  infant,  and  the  guardian  entitled 
to  the  custody  and  management  of  the  estate  of  an  insane  person,  or 
other  person  adjudged  incapable  of  conducting  his  own  affairs,  who  is 
interested  in  real  estate  held  in  joint  tenancy,  or  in  common,  or  in  any 
other  manner  so  as  to  authorize  his  being  made  a  party  to  an  action  for 
the  partition  thereof,  may  consent  to  a  partition  without  action,  and 
agree  upon  the  share  to  be  set  off  to  such  infant,  or  other  person  enti- 
tled, and  may  execute  a  release  in  his  behalf  to  the  owners  of  the 
shares,  of  the  parts  to  which  they  may  be  respectively  entitled,  upon 
an  order  of  the  couit. 

308.  The  costs  of  partition,  including  fees  of  referees  and  other 
disbursements,  shall  be  paid  by  the  parties  respectively  entitled  to 
share  in  the  lands  divided,  in  proportion  to  their  respective  interests 
therein,  and  may  be  included  and  specified  in  the  judgment.  In  that 
case  they  shall  be  a  Hen  on  the  several  shares,  and  the  judgment  may 
be  enforced  by  execution  against  such  shares,  and  against  other  prop- 
erty held  by  the  respective  parties.  When,  however,  a  litigation  arises 
between  some  of  the  parties  only,  the  court  may  require  the  expense  of 
such  litigation  to  be  paid  by  the  parties  thereto,  or  any  of  them. 

309.  The  court,  vnth  the  consent  of  the  parties,  may  appoint  a 
single  referee,  instead  of  three  referees,  in  the  proceedings  under  the 
provisions  of  this  chapter  ;  and  the  single  referee,  when  thus  appoint- 
ed, shall  have  all  the  powers  and  perform  all  the  duties  required  of 
the  three  referees. 


164  USURPATION    OF   OFFICE.  §310 

*  * 

CHAPTER  V. 

ACTIONS   FOR  THE   USURPATION   OF   AN   OFFICE    OR   FRANCHISE. 

310.  An  action  may  be  brought  by  the  attorney  general  in  the 
name  of  the  people  of  this  state,  upon  his  own  information,  or  upon  the 
complaint  of  a  private  party,  against  any  person  -who  usurps,  intrudes 
into,  or  unlawfully  holds  or  exercises  any  public  office,  civil  or  military, 
or  any  franchise  within  this  state.  And  it  shall  be  the  duty  of  the  at- 
torney general  to  bring  the  action  whenever  he  has  reason  to  believe 
that  any  such  office  or  franchise  has  been  usurped,  intruded  into,  or 
unlawfully  held  or  exercised  by  any  person,  or  when  he  is  directed  to 
do  so  by  the  governor. 

See  Section  25,  p.  15. 

1.  In  an  action  in  the  nature  of  a  (juo  waiTanto,  the  place  of  trial  may  properly  be 
laid  in  any  county  of  the  state. — People  v.  Cook,  6  How.  Pr.,  448. 

2.  Office  terms  should  not  be  extended  beyond  the  time  clearly  defined,  but  rather 
shortened  by  implication,  if  necessary. — People  v.  Brenham,  3  Cal.,  477. 

3.  An  action  in  the  nature  of  a  quo  warranto  is  the  only  proper  remedy  where  an 
unauthorized  person  has  usuqaed  the  office  of  alderman,  in  a  municipal  corporation. — 
Lewis  V.  Oliver,  4  Abbott,  121. 

811.  Whenever  such  action  is  brought,  the  attorney  general,  in 
addition  to  the  statement  of  the  cause  of  action,  may  also  set  forth 
in  the  complaint  the  name  of  the  person  rightly  entitled  to  the  office, 
with  a  statement  of  his  right  thereto  ;  and  in  such  case,  upon  proof  by 
affidavit  that  the  defendant  has  received  fees  or  emoluments  belon*!;ing 
to  the  office,  and  by  means  of  his  usurpation  thereof,  an  order  may  be 
granted  by  a  judge  of  the  supreme  court,  or  a  district  judge,  for  the 
arrest  of  such  defendant,  and  holding  him  to  bail ;  and  thereupon  he 
may  be  arrested,  and  held  to  bail,  in  the  same  manner,  and  with  the 
same  effect,  and  subject  to  the  same  rights  and  habilities,  as  in  other 
civil  actions  where  the  defendant  is  subject  to  arrest. 

1.  Our  statutes  recognize  the  difference  between  mandamus  and  quo  warranto,  as 
held  in  England.— Peop/e  v.  Olds,  3  Cal.,  167. 

2.  The  complaint,  to  authorize  the  party  claimant  to  be  ])laintiff,  should  state  facts 
showing  that  he  is  entitled  to  the  office  from  which  the  defendant  is  sought  to  be  oust- 
ed.— People  V.  Ryder,  2  Kern,  433. 

3.  It  rests  in  the  discretion  of  the  attorney  general  to  bring  an  action  against  a  per- 


§310  USURPATION    OF   OFFICE.  165 

son  alleged  to  have  usurped  a  public  office.     A  mandamus  will  not  be  granted  to  com- 
pel him  to  institute  such  action. — People  y .  Attorney  General,  3  Abbott,  131. 

4.  Under  this  action  an  injunction  restraining  generally  the  functions  of  the  office, 
is  not  authorized  by  law. — People  v.  Draper,  14  How.  Pr.,  233. 

312.  In  every  such  case  judgment  may  be  rendered  upon  the  right 
of  the  defendant,  and  also  upon  the  right  of  the  party  so  alleged  to  be 
entitled ;  or  only  upon  the  right  of  the  defendant,  as  justice  shall 
require. 

313.  If  the  judgment  be  rendered  upon  the  right  of  the  person  so 
alleged  to  be  entitled,  and  the  same  be  in  favor  of  such  person,  he 
shall  be  entitled,  after  taking  the  oath  of  office,  and  executing  such 
official  bond  as  may  be  required  by  law,  to  take  upon  himself  the  exe- 
cution of  the  office. 

314.  If  judgment  be  rendered  upon  the  right  of  the  person  so  al- 
leged to  be  entitled,  in  favor  of  such  person,  he  may  recover,  by  action, 
the  damages  which  he  shall  have  sustained  by  reason  of  the  usurpation 
of  the  office  by  the  defendant. 

) .  In  an  action  in  the  nature  of  a  quo  warranto,  brought  against  an  alleged  intruder 
upon  a  public  office,  the  judgment  of  the  court,  if  for  the  plaintiff,  can  only  be  a  judg- 
ment of  ouster,  and  for  costs.  The  claim  for  fees  must  be  asserted  in  a  separate  ac- 
tion.— People  V.  Snedeker,  3  Abbott,  233. 

315.  When  several  persons  claim  to  be  entitled  to  the  same  office 
or  franchise,  one  action  may  be  brought  against  all  such  persons,  in 
order  to  try  their  respective  rights  to  such  office  or  franchise. 

316.  When  a  defendant,  against  whom  such  action  has  been 
brought,  is  adjudged  guilty  of  usurping  or  intruding  into,  or  unlawfully 
holding  any  office,  franchise,  or  privilege,  judgment  shall  be  rendered 
that  such  defendant  be  excluded  from  the  office,  franchise,  or  privilege, 
and  that  he  pay  the  costs  of  the  action.  The  court  may  also,  in  its 
discretion,  impose  upon  the  defendant  a  fine  not  exceeding  five  thous- 
and dollars  ;  which  fine,  when  collected,  shall  be  paid  into  the  treasury 
of  the  state. 


■/U^ 


IGG  VESSELS.  ^317 


CHAPTER  yi. 

OF    ACTIONS    AGAINST    STEAMERS,    VESSELS,    AND    BOATS. (a) 

1.  Admiralty  jurisdiction  must  be  received,  pro  tanto,  in  principle  and  forms,  in 
state  courts. — Aven'll  v.  Hartford,  2  Cal.,  308  ;  Taylor  v.  Columbia,  5  Cal.,  268  ;  Warner 
V.  Uncle  Sam,  8  Cal.,  April  T. 

2.  For  a  full  decision  on  points  of  jurisdiction,  &c.,  of  this  chapter,  see  Thompson  v. 
Julius  D.  Morton,  23  Ohio,  26  ;  3  Livingston's  Law  Mag.,  12.t. 

317.  All  steamers,  vessels,  and  boats  shall  be  liable : 

1st.  For  supplies  furnished  for  their  use  at  the  request  of  their  re- 
spective OAvners,  masters,  agents,  or  consignees ; 

2d.  For  services  rendered  on  board  at  the  request  of,  or  on  contract 
with,  their  respective  OAvners,  masters,  agents,  or  consignees  ; 

3d.  For  materials  furnished  in  their  construction,  or  repair,  or 
equipment ; 

4th.  For  their  wharfage  and  anchorage  within  the  state  ; 

5th.  For  non-performance  or  mal-performance  of  any  contract  for 
the  transportation  of  persons  or  property,  made  by  their  respective 
owners,  masters,  agents,  or  consignees  ; 

Gth.  For  injuries  committed  by  them  to  persons  or  property  :  pro- 
vided, that  the  wages  of  mariners,  boatmen,  and  others  employed  in 
the  service  of  such  steamers,  vessels,  and  boats,  shall  have  preference 
over  all  other  demands. 

1.  The  transportation  of  property  applies  to  towing  other  vessels  or  craft. —  TlViiVe 
V.  Mary  Ann,  6  Cal.,  462. 

318.  Actions  for  demands  arising  upon  any  of  the  grounds  speci- 
fied in  the  preceding  section,  may  be  brought  directly  against  such 
steamers,  vessels,  or  boats. 

319.  The  complaint  shall  designate  the  steamer,  vessel  or  boat, 
by  name,  and  shall  be  verified  by  the  oath  of  the  plaintiff,  or  some  one 
on  his  behalf. 


(a)     Soutcr  V.  Sea  Witch,  1  Cal.,  162  ;  Bay\.  Ilarbeck,  1  Cal.,  451,  refer  to  the  act  of 
1850,  which  has  been  by  this  chapter  repealed. 


§324  VESSELS.  167 

320.  The  summons  attached  to  a  certified  copy  of  the  complaint; 
may  be  served  on  the  master,  mate,  or  any  person  having  charge  of 
the  steamer,  vessel,  or  boat,  against  which  the  action  is  brought. 

321.  The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterwards,  may  have  the  steamer,  vessel  or  boat,  against  which 
the  action  is  brought,  with  its  tackle,  apparel^  and  furniture,  attached, 
as  sc'curity  for  the  satisfaction  of  any  judgment  that  maybe  recovered 
therein. 

322.  The  clerk  of  the  court  shall  issue  a  writ  of  attachment,  on 

the  application  of  the  plaintiff,  upon  receiving  a  written  undertaking  , .    ^^ 

on  behalf  of  the  plaintiff,  executed  by  two  or  more  sufficient  sureties, 
to  the  effect,  that  if  judgment  be  rendered  in  favor  of  the  steamer, 
vessel  or  boat,  as  the  case  may  be,  he  will  pay  all  costs  and  damages 
that  may  be  awarded  against  him,  and  all  damages  which  may  be  sus- 
tained by  such  steamer,  vessel  or  boat,  from  the  attachment,  not  ex- 
ceeding the  sum  specified  in  the  undertaking,  which  shall  in  no  case 
be  less  than  five  hundred  dollars  when  the  attachment  is  issued  against 
a  steamer  or  vessel,  or  less  than  two  hundred  dollars  when  issued 
against  a  boat.  The  undertaking  shall  be  accompanied  by  an  affidavit 
of  each  of  the  sureties,  that  he  is  a  resident  and  freeholder  or  house-  "!'' 

holder  of  the  county,  and  worth  double   the   amount  specified  in  the  '^ 

undertaking,  over  and  above  all  of  his  just  debts  and  liabilities.     The  "4r 

clerk  shall  file  the  undertaking  and  affidavits. 

323.  The  writ  shall  be  directed  to  the  sheriff  of  the  county  within  ' 
which  the  steamer,  vessel,  or  boat  lies,  and  direct  him  to  attach  such 
steamer,  vessel  or  boat,  with  its  tackle,  apparel  and  furniture,  and 

keep  the  same  in  his  custody  until  discharged  by  due  course  of  law ; 
unless  the  owner,  master,  agent,  or  consignee  thereof,  give  him  secu- 
rity by  the  undertaking  of  at  least  two  sufficient  sureties,  in  an  amount 
sufficient  to  satisfy  the  demand  in  suit,  which  shall  be  specified  in  the 
wi'it,  besides  costs  ;  in  which  case  to  take  such  undertaking. 

I.     If  the  attachment  was  void,  no  proceeding  can  be  had  on  the  release  bond. — Mc- 
Queen V.  "Russell,"  1  Cal.,  165. 

324.  The  sheriff  to  whom  the  writ  is  directed  and  delivered  shall 
execute  the  same  without  delay,  and  shall,  unless   the  undertaking 


168  VESSELS.  §325 

mentioned  in  the  last  section  be  given,  attach  and  keep  in  his  custody 
the  steamer,  vessel  or  boat  named  therein,  with  its  tackle,  apparel  and 
furniture,  until  discharged  bj  due  course  of  law ;  but  the  sheriff  shall 
not  be  authorized  by  any  such  writ  to  interfere  with  the  discharge  of 
any  merchandise  on  board  of  such  steamer,  vessel  or  boat,  nor  with 
the  removal  of  any  trunks  or  other  property  of  passengers,  or  of  the 
captain,  mate,  seamen,  steward,  cook,  or  other  persons  employed  on 
board. 

325.  The  owner,  master,  agent,  or  consignee  of  the  steamer,  vessel 
or  boat,  against  which  the  action  is  brought,  may  appear  and  answer, 
or  plead  to  the  action  ;  and  may  except  to  the  sufficiency  of  the  sure- 
ties on  the  undertaking  filed  on  the  behalf  of  the  plaintiff,  and  may 
require  sureties  to  justify,  as  in  actions  against  individuals  upon  bail  on 
arrest. 

326.  All  proceedings  in  actions  under  the  provisions  of  this  chap- 
ter, shall  be  conducted  in  the  same  manner  as  in  actions  against  indi- 
viduals, except  as  otherwise  herein  provided ;  and  in  all  proceedings 
subsequent  to  the  complaint,  the  steamer,  vessel  or  boat,  may  be  desig- 
nated as  defendant. 

327.  After  the  appearance  to  the  action,  of  the  owner,  master, 
anient,  or  consignee,  the  attachment  may,  on  motion,  be  discharged, 
in  the  same  manher,  and  on  like  terms  and  conditions,  as  attachments 
in  other  cases,  subject  to  the  provision  of  section  three  hundred  and 
twenty-nine. 

328.  If  the  attachment  be  not  discharged,  and  a  judgment  be  re- 
covered in  the  action  in  favor  of  the  plaintiff,  and  an  execution  be 
issued  thereon,  the  sheriff  shall  sell  at  public  auction,  after  publication 
of  notice  of  such  sale  for  ten  days,  the  steamer,  vessel  or  boat,  with  its 
tackle,  apparel  and  furniture,  or  such  interest  therein  as  may  be  nec- 
essary, and  shall  apply  the  proceeds  of  sale  as  follows  : 

1st.  When  the  action  is  brought  for  demands  other  than  the  wages 
of  mariners,  boatmen,  and  others  employed  in  the  service  of  the 
steamer,  vessel  or  boat  sold,  to  the  payment  of  the  amount  of  such 
wages,  as  specified  in  the  execution  ; 


§330  VESSELS.  169 

2d.  To  the  payment  of  the  judgment  and  costs,  including  his  fees  ; 
and, 

3d.  He  shall  pay  any  balance  remaining,  to  the  owner,  master, 
agent,  or  consignee,  who  may  have  appeared  in  the  acticn  ;  or  if  there 
be  no  appearance,  then  into  court,  subject  to  the  claim  of  any  party  or 
parties  legally  entitled  thereto. 

329.  Any  mariner,  boatman,  or  other  person  employed  in  the  ser- 
vice of  the  steamer,  vessel,  or  boat  attached,  who  may  wish  to  assert 
his  claim  for  wages  against  the  same,  the  attachments  being  issued  for 
other  demands  than  such  wages,  shall  file  an  affidavit  of  his  claim,  set- 
ting forth  the  amount  and  the  particular  service  rendered,  with  the 
clerk  of  the  court ;  and  thereafter  no  attachment  shall  be  discharged 
upon  filing  an  undertaking,  unless  the  amount  of  such  claim,  or  the 
amount  determined  as  provided  in  the  next  section,  be  covered  thereby 
in  addition  to  the  other  requirements  ;  and  any  execution  issued 
against  such  steamer,  vessel,  or  boat,  upon  judgment  recovered  there- 
after, shall  direct  the  application  of  the  proceeds  of  any  sale  :  first,  to 
the  payment  of  the  amount  of  such  claims  filed,  or  the  amount  deter- 
mined, as  provided  in  the  next  section,  which  the  cl^rk  shall  insert  in 
the  writ ;  and  second,  to  the  payment  of  the  judgment  and  costs,  and 
sherifi"'s  fees  ;  and  shall  direct  the  payment  of  any  balance  to  the 
owner,  master,  agent,  or  consignee,  who  may  have  appeared  in  the 
action  ;  but  if  no  appearance  by  them  be  made  therein,  it  shall  direct 
a  deposit  of  the  balance  in  court. 

330.  If  the  claim  of  the  mariner,  boatman,  or  other  person,  filed 
with  the  clerk  of  the  court,  as  provided  in  the  last  section,  be  not  con- 
tested within  five  days  after  notice  of  the  filing  thereof,  by  the  owner, 
master,  agent,  or  consignee  of  the  steamer,  vessel,  or  boat  against 
which  the  claim  is  filed,  it  shall  be  deemed  admitted  ;  but  if  contested, 
the  clerk  shall  endorse  upon  the  affidavit  thereof  a  statement  that  it  is 
contested,  and  the  grounds  of  the  contest,  and  shall  immediately  there- 
after order  the  matter  to  a  single  referee  for  his  determination,  or  he 
may  hear  the  proofs  and  determine  the  matter  himself.  The  judg- 
ment of  the  clerk,  or  referee,  may  be  reviewed  by  the  county  judge 
either  in  term  or  vacation,  immediately  after  the  same  is  given,  and 
the  judgment  of  the  county  judge  shall  be  final.     On  the  review,  the 


170  APPEALS.  §331 

county  judge  may  use  the  minutes  of  the  proofs  taken  by  the  clerk,  or 
referee,  or  may  take  the  proofs  anew. 

331.  The  notice  of  sale  published  by  the  sheriff,  shall  contain  a 
statement  of  the  measurement  and  tonnage  of  the  steamer,  vessel,  or 
boat,  and  a  general  description  of  her  condition. 

332.  From  orders  and  judgments  under  this  chapter,  an  appeal 
may  be  taken  by  the  owner,  master,  agent  or  consignee,  on  the  same 
terms  and  conditions  as  appeals  in  actions  against  individuals. 


TITLE     IX. 

OF  APPEALS  IX  CIVIL  ACTIONS. 

CHAPTER    I. 

"       APPEALS   IN   GENERAL.    («) 

333.  [1854.]  A  judgment  or  order  in  a  civil  action,  except  when 
expressly  made  final  by  this  act,  may  be  reviewed  as  prescribed  by 
this  title,  and  not  otherwise. 

See  Sec.  332. 

1 .  On  appeal  where  the  record  contains  no  proceedings  except  pleadings  and  judg- 
ment, which  were  sufficient,  the  appellate  court  will  hold,  that  sufficient  evidence  was 
adduced  to  warrant  the  judgment. —  Gonzales  v.  Huntley,  1  Cal.,  32  ;  Palmer  v.  Broivn, 
ib.,  42;  Rinr/ijold  v.  Haven,  ib.,  108. 

2.  Tlie  appellate  court  will  presume  in  favor  of  the  judgment  below,  unless  the 
record  clearly  sliows  error. —  Thompson  v.  Munrow,  2  Cal.,  99 ;  Kilburn  v.  Ritchie,  2 
Cal.,  145  ;  Balfour  v.  Mitchell,  12  Smc.  &M.,  629. 

3.  A  judgment  will  not  be  reversed  for  an  error  by  which  tiie  rights  of  the  parties 
were  not  prejudiced. — Kilburn  v.  Ritchie,  2  Cal.,  145. 

4.  Ai)peal  dismissed,  where  the  record  disclosed  that  the  court  below  might  or 
might  not  have  granted  a  new  trial,  without  impeachment  of  its  legal  discretion. — Cooke 
V.  Stewart,  2  Cal.,  348. 

(rt)  The  provisions  of  this  chapter  shall  be  applicable  to  appeals  from  the    probate 
court  so  far  as  they  do  not  conflict  with  "  An  act  to  regulate  tlic  settlement  of  the  cs-        / 
tate  of  deceased  i)ersons."— Statutes  of  1855,  302,  Wl  ;  Wood's  Digest,  422,  §300. 


§333  APPEALS.  171 

5.  An  appeal  lies  from  an  order  on  demurrer,  where  a  substantial  right  is  affected. 
Biirgni/ne  v.  Pern/,  3  Cal.,  50;  Xolton  v.  Western  R.  R.  Co.,  10  How.  Pr.,  97  ;  Cook 
V.  Pomeroy,  ib.,  103. 

6.  An  appeal  cannot  be  taken  from  a  mere  decision  on  demurrer,  l)cforc  final  judg- 
ment.— Moraifd  V.  Emeric,  4  Cal.,  308;  McGeowjh  v.  Vanderwort,  (1856,  not  rep'd.) 
Beiitlei/  V.  Jones,  4  How.  Pr.,  335  ;  King  v.  Stajford,  5  ib.,  30;  6  ib.,  127  ;  Bruce  v. 
Pinckney,  8  ib.,  397  ;  Lewis  v.  Acker,  8  ib.,  414  ;  Perkins  v.  Farnham,  10  ib.,  120. 

7.  An  appeal  will  not  lie  from  an  order  of  court  refusing  to  set  aside  an  interlocu- 
tory judgment.  It  should  be  taken  upon  tlie  previous  order  itself — Stearns  v.  Marvin, 
3  Cal.,  376;  Henly  v.  Hastings,  ib.,  341. 

8.  An  appeal  does  not  lie  from  an  order  making  a  new  party  defendant. — Beck  v. 
City  of  San  Francisco,  4  Cal.,  375. 

9.  An  appeal  does  not  lie  from  an  interlocutory  order. — People  v.  Thurston,  5 
Cal.,  517. 

10.  An  appeal  does  not  lie  from  an  order  granting  a  change  of  venue. — Juan  v.  Li- 
goklsby,  6  Cal.,  439. 

1 1 .  Where  no  appeal  is  allowed  the  proper  method  is  to  take  the  case  up  by  a  writ 
of  error. — Middletonv.  Gould,  5  Cal.,  190. 

12.  Plaintiff  cannot  appeal  from  a  judgment  of  non-suit,  entered  on  liis  own  mo- 
tion.— Tmleyv.  Beard,  6  Cal.,  666. 

13.  An  appeal  does  not  lie  from  an  order  refusing  to  grant  a  commission  to  take 
testimony. — People  v.  Stillman,  7  Cal.,  Jan.  T. 

14.  No  appeal  is  allowed  from  an  order  refusing  to  dissolve  an  injunction. — Martin 
V.  Travers,  ib. 

15.  An  appeal  will  not  authorize  a  stay  of  an  injunction. — Merced  Mining  Co.  v.  Fre- 
mont,  ib.,  April  T. 

16.  An  appeal  will  not  lie  from  an  order  refusing  to  discharge  an  attachment. — Ba- 
ker \.  Rosenthall,  7  Cal.,  April  T. 

17.  Where  an  appeal  is  given  by  statute,  that  remedy  is  exclusive,  and  must  be 
pursued,  and  a  writ  of  error  will  only  lie  where  no  right  to  appeal  is  given. — Haight  v. 
Gay,  7  Cal.,  Oct.  T. 

1 8.  An  order  appealable  is  such  as  would  grant  an  affirmative  relief,  and  where 
such  relief  is  denied. —  Gilnian  v.  Contra  Costa  Co.,  7  Cal.,  July  T. 

19.  A  decree  which  does  not  ascertain  any  specific  sum  as  due  to  any  one,  but  con- 
templates the  taking  of  a  further  account,  is  an  interlocutory  decree,  and  not  a  final  de- 
cree.—  Grayy.  Gray,  8  Cal.,  April  T. 

20.  An  order  of  reference  is  not  a  final  order  or  judgment  to  be  appealed  from. — 
Harris  v.  Clark,  4  How.  Pr.,  78. 

21.  The  giving  security  on  an  appeal  from  an  order  does  not  stay  proceedings  of 
the  other  party, — Forbes  v.  Oaks,  1  Abbott,  120. 

22.  An  appeal  from  an  order  does  not,  per  se,  stay  proceedings. — Tiers  \.  Carnahan, 
3  Abbott,  69  ;  Johnson  v.  Scriver,  ib.,  208  ;  Hicks  v.  Smitt,  4  Abbott,  285  ;  Hibhard  v. 
Burwcll,  11  How.  Pr.,  572. 

23.  A  decision  at  special  term,  overruling  a  demurrer  to  a  complaint,  and  giving 
leave  to  answer,  is  an  order  and  not  a  judgment,  while  the  privilege  given  to  answer  is 


172  APPEALS.  .  §334 

continuing.— Forrf  v.  David,  3  Abbott,  385  ;  13  How.  Tr.,  193  ;  Plu'pps  v.  Van  Cott,  4 
Abbott,  90. 

334.  An  order  made  out  of  court,  without  notice  to  the  adverse 
party,  may  be  vacated  or  modified  without  notice,  by  the  judge  who 
made  it ;  or  may  be  vacated  or  modified  on  notice,  in  the  manner  in 
which  other  motions  are  made. 

Sec  Sec.  25,  p.  15. 

1.  A  court  may  modify  an  injunction  on  a  motion  ex  parte,  and  the  remedy  is  by 
appeal  from  the  modified  order. — Fremont  v.  Merced  Minimj  Co.,  8  Cal.,  Jan.  T. 

335.  Any  party  aggrieved  may  appeal  in  the  cases  prescribed  in 
this  title.  The  party  appeahng  shall  be  known  as  the  appellant,  and 
the  adverse  party  as  the  respondent. 

1.  The  acceptance  of  costs  on  a  motion  is  not  waiving  the  right  to  an  appeal. — Ty- 
sen  V.  Wells,  1  Cal.,  378. 

2.  An  appeal  cannot  be  prosecuted  by  a  stranger  to  the  record. — Montgomery  v.  Leav- 
enworth, 2  Cal.,  57. 

3.  A  party  intervening,  though  not  a  party  of  record,  may  appeal  from  any  decision 
affecting  liis  rights. — Adams\.  Woods,  7  Cal.,  Oct.  T. 

336.  [1854.]  An  appeal  may  be  taken : 

1st.  From  a  final  judgment  m  an  action,  or  special  proceeding,  com- 
menced in  the  court  in  Avhiclr  the  judgment  is  rendered,  within  one 
year  after  the  rendition  of  tl/e  judgment ; 

2d.  From  a  judgment  rendered  on.  an  appeal  from  an  inferior  court, 
/  3S  ^         within  ninety  days  after  the  rendition  of  the  judgment ; 

3d.  From  an  order  grantingvor  refusing  a  new  trial ;  from  an  order 
refusing  to  change  the  place  of  trial  of  an  action  or  proceeding,  after  a 
motion  is  made  therefor,  in  the  cases  provided  by  law,  or  on  the  ground 
that  the  judge  is  disqualified  from^  hearing  or  trying  the  same  ;  from 
an  order  granting  or  dissolving  an  \njunction  ;  and  from  any  special 
order  made  after  the  final  judgment,  Vithin  sixty  days  after  the  order 
is  made  and  entered  in  the  minutes  of]  the  court ; 

This  section  shall  not  extend  to  appeals  to  the  district  courts  from 
S\  ^}t  6  orders  or  judgments  of  the  probate  courts,  but  shall  extend  to  judg- 
ments rendered  in  the  district  courts  upon  such  appeals. 

1.  This  last  clause  is  unconstitutional.     See  chapter  III,  p.  182. 

2.  What  is  ajinal,  and  what  is  an  interlocutonj  order,  considered. — Tjorinij  v,  lllsley, 
1  Cal.,  24. 


i4 


§338       •         STATEMENT  ON  APPEAL,  173 

3.  If  the  .appellants  have  been  guilty  of  no  laches  in  perfecting  their  appeal,  the 
court  may  enlarge  the  time  for  them  to  file  their  bond,  to  entitle  them  to  a  stay  of  pro- 
ceedings under  the  statute,  and  in  the  meantime  order  a  stay  of  proceedings  in  tlie  infe- 
rior court,  until  the  extended  period  shall  have  expired  ;  and  in  such  cases  the  court 
may  impose  such  terms  as  shall  appear  to  be  proper. — Bradley  v.  Hall,  1  Cal.,  199. 

4.  An  order  setting  aside  a  report  of  a  referee,  appointed  to  take  an  account,  is  merely 
interlocutory,  and  not  the  subject  of  appeal  before  judgment. — Johnson  v.  Doplins,  6 
Cal.,  83. 

5.  An  appeal  does  not  lie  from  an  order  refusing  an  injunction. — Jxichards  v.  McMil- 
lan, 6  Cal.,  422. 

6.  An  appeal  does  not  lie  from  an  order  refusing  to  dissolve  an  injunction  ;  it  should 
be  from  the  granting  of  an  injunction. — Martin  v.  Travers,  7  Cal.,  Jan.  T. 

7.  Where  a  party  proceeds  to  try  a  cause  under  an  order  of  reference,  he  thereby 
waives  any  right  to  appeal  from  that  order. —  Ubsdell  v.  Root,  3  Abbott,  142. 

8.  The  supreme  court  lias  not  power  to  I'clieve  a  party  from  an  omission  to  appeal 
from  a  judgment  within  the  time  prescribed  bylaw. — Humphrey  \.  Chamberlain,  1  Kern, 
274. 

9.  One  year  limitation  to  bring  on  an  appeal,  begins  to  run  from  v"\e  date  of  the 
entry  of  the  order  for  final  judgment  in  the  court  below. —  Wells  v.  Danforth,  7  How. 
Pr.,  197. 

337.  The  appeal  shall  be  made  by  filmg  with  the  clerk  of  the  court, 
with  whom  the  judgment  or  order  appealed  from  is  entered,  a  notice, 
stating  the  appeal  from  the  same,  or  some  specific  part  thereof,  and 
serving  a  copy  of  the  notice  upon  the  adverse  party  or  his  attorney. 

1.  In  appeals  by  an  incorporated  city  or  town,  or  a  county,  the  notice  may  be  served 
by  some  head  of  the  department. — Statutes  of  1856,  note  {a),  p.  177. 

2.  AVhere  the  object  of  a  notice  of  appeal  is  accomplished,  it  is  immaterial  whether 
the  notice  be  given  or  not. — McLeran  v  Shartzer,  5  Cal.,  70. 

338.  When  the  party  who  has  the  right  to  appeal  wishes  a  statement 
of  the  case  to  be  annexed  to  the  record  of  the  judgment  or  order,  he 
shall,  within  twenty  days  after  the  entry  of  such  judgment  or  order, 
prepare  such  statement,  which  shall  contain  the  grounds  upon  which  he 

intends  to  rely  on  the  appeal,  and  so  much  of  the  evidence  as  may  be  ^^Z,J^3  -^ 
necessary  to  explain  the  grounds,  and  no  more,  and  shall  serve  a  copy 
thereof  upon  the  adverse  party.  The  respondent  may,  within  five  days 
thereof,  prepare  amendments  to  the  statement,  and  serve  a  copy  on  the 
appellant.  If  such  amendments  are  admitted,  the  statement  shall  be 
corrected  accordingly  ;  and  if  not  admitted,  the  statement  and  amend- 
ments shall  be  presented  to  the  judge  who  tried  or  heard  the  case,  upon 
notice  of  two  days  to  the  respondent,  and  a  true  statement  shall  there- 
upon be  settled  by  such  judge. 


174  STATEMENT  ON  APPEAL.         '       §339 

Sec  statement  on  motion  for  new  trial,  Section  195. 
See  rule  II,  of  the  supreme  court. 

1.  A  statement  on  appeal  must  be  filed  within  statute  time,  or  it  forms  no  part  of 
the  record. — McComberv.  Chambet-lain,  7  Cal.,  Oct.  T. 

2.  During  the  term  of  the  court  the  record  may  become  amended  in  any  manner 
conformal)le  with  the  facts,  but  when  the  term  is  past  it  can  only  be  amended  in  case 
where  tiic  record  itself  shows  error. — Bramjer  v.  Chevalier,  8  Cal.,  Jan.  T. 

3.  The  statement  need  not  contain  whatever  is  a  matter  of  record  without  it.  The 
verdict  of  the  jury  may  be  omitted,  as  it  is  recorded  by  the  clerk ;  the  finding  of  the 
court  must  be  inserted,  for  it  is  filed  with  the  clerk  and  not  recorded. — Reynolds  Y.Har- 
ris, 7  Cal.,  Oct.  T. 

4.  The  substance  of  the  tcstimon}-  is  all  that  is  required  to  be  set  out  in  the  state- 
ment. The  exact  language  of  each  witness  is  unnecessary. — Battershy  \ .  Abbott ,  8  Cal., 
April  T. 

5.  Where  the  statement  only  shows  that  a  demurrer  to  a  complaint  was  sustained, 
and  judgment  was  rendered  for  plaintiff"  during  the  same  term,  the  respondent  should 
suggest  a  diminution  of  the  record,  in  order  to  supply  the  apparent  omission  in  the 
statement,  or  the  cause  will  be  remanded  for  further  proceedings,  the  judgment  being 
improperly  rendered. — Seaver  v.  Coy,  ib. 

6.  It  is  too  late,  after  the  decision  of  an  appeal,  to  move  for  a  re-settlement  of  the 
case. — Fish  v.  Wood,  2  Abbott,  419.  • 

339.  [1855.]  If  the  partj  shall  omit  to  make  a  statement  within 
the  time  above  limited,  he  shall  be  deemed  to  have  waived  his  right 
thereto  ;  and  when  a  statement  is  made,  and  the  parties  shall  omit, 
within  the  several  times  above  limited,  the  one  party  to  propose  amend- 
ments, the  other  to  notify  an  appearance  before  the  judge,  they  shall 
respectively  be  deemed,  the  former  to  have  agreed  to  the  statement 
as  proposed,  and  the  latter  to  have  agreed  to  the  amendments  as  pro- 
posed, .and  no  settlement  of  the  statement,  or  certificate  thereto  by  the 
judge,  shall  be  required. 

1.  If  the  appellant  allow  the  time  to  expire,  after  taking  the  appeal,  whhout  fram- 
ing a  case,  he  waives  his  right  to  have  a  case  stated  ;  and  a  subsequent  order  of  the 
court,  made  without  notice  to  the  resjjondent,  allowing  further  time  to  make  up  the 
statement,  is  a  nullity. — Leech  v.  West,  2  Caf.,  95. 

2.  It  leaves  the  party  to  argue  the  case  on  the  judgment  record  alone. — liobinson  v. 
Iludson  River R.  R.  Co.,  3  Abbott,  115  ;  MrCuinbery.  Chamberlain,  7  Cal.,  Oct.  T. 

340.  The  several  periods  of  time  above  limited  may  be  enlarged, 
upon  good  cause  shown,  by  the  judge  before  whom  the  cause  was  tried. 

341.  The  statement,  when  settled  by  the  judge,  shall  be  signed  by 
him,  with  his  certificate  that  tlie  same  has  been  allowed  and  is  correct ; 


§345  APPEALS.  175 

when  the  statement  is  agreed  upon  by  the  parties,  they  or  their  attor- 
neys shall  sign  the  same  with  their  certificate  that  it  has  been  agreed 
upon  by  them,  and  is  correct.  In  either  case,  when  settled  or  agreed 
upon,  it  shall  be  filed  with  the  clerk. 

342.  The  clerk  shall  annex  the  statement,  if  the  appeal  be  from  a 
final  judgment,  to  the  judgment  roll ;  if  the  appeal  be  from  an  order, 
to  such  order,  or  to  a  copy  thereof. 

343.  [1854.]  The  provisions  of  the  last  five  preceding  sections 
shall  not  apply  to  appeals  taken  from  an  order  made  upon  affidavit  fil- 
ed ;  but  such  affidavits  shall  be  annexed  to  the  order  in  the  place  of 
the  statement  mentioned  in  those  sections. 

344.  Upon  an  appeal  from  a  judgment  the  court  may  review  any 
intermediate  order  involving  the  merits,  and  necessarily  affecting  the 
judgment. 

See  notes  to  Section  333. 

1.  An  appeal  lies  from  an  onler  on  demurrer,  where  a  substantial  right  is  affected. — 
Burgoyne  v.  PeiTi/,  3  Cal.,  50. 

2.  An  order  denying  a  motion  to  stay  the  trial  of  a  cause  until  the  decision  of  an- 
other cause,  is  not  an  order  involving  the  merits,  and  is  not  reversable  on  the  appeal 
from  the  final  judgment. — James  v.  Chalmers,  2  Seld.,  209. 

3.  An  objection  can  be  urged  on  appeal  against  an  order  refusing  to  discharge  an 
attachment,  though  final  judgment  was  had  against  defendants. — Taaffev.  Rosenthall,  7 
Cal.,  April  T.    • 

345.  Upon  an  appeal  from  a  judgment  or  order,  the  appellate  court 
may  reverse,  affirm,  or  modify  the  judgment  or  order  appealed  from, 
in  the  respect  mentioned  in  the  notice  of  appeal,  and  as  to  any  or  all 
of  the  parties ;  and  may  set  aside  or  confirm,  or  modify  any  or  all  of 
the  proceedings  subsequent  to  or  dependent  upon  such  judgment  or 
order,  and  may,  if  necessary  or  proper,  order  a  new  trial.  When  the 
judgment  or  order  is  reversed  or -modified,  the  appellate  court  may 
make  complete  restitution  of  all  property  and  rights  lost  by  the  erro- 
neous judgment  or  order  ;  and  when  it  appears  to  the  appellate  court 
that  the  appeal  was  made  for  delay,  it  may  add  to  the  costs  such  dam- 
ages as  may  be  just. 

1.  "When  it  is  proper  this  court  will  render  such  judgment  as  the  court  below  should 
have  rendered. — Bidlemanv.  Keiven,  2  Cal.,  248. 


176  APPEALS.  §340 

2.  A  judgment  cannot  be  affirmed  as  to  a  part  of  the  amount  recovered,  and  revers- 
ed as  to  the  residue,  where  a  new  trial  is  ordered  as  to  the  part  which  is  reversed. — Sto- 
ryv.  New  York  mid  Harlem  R.  R.  Co.,  2  Seld.,  85. 

3.  Upon  appeal  the  judgment  may  be  reversed  as  to  one  defendant  who  appeals, 
without  affecting  tiie  judgment  as  to  another  defendant  who  does  not  appeal,  in  cases 
where  a  several  judgment  below  would  be  proper. — Farrell  v.  Calkins,  10  Barb.,  343; 
Geraud  v.  Stagg,  10  How.  Pr.,  3G9. 

346.  [1854.]  On  an  appeal  from  a  final  judgment  the  appellant 
shall  furnish  the  court  with  a  copy  of  the  notice  of  appeal,  the  judgment 
roll  and  the  statement  annexed,  (if  there  be  one,)  certified  bv  the  clerk 
to  be  a  correct  copy.  On  appeal  from  a  judgment  rendered  on  an  ap- 
peal, or  from  an  order,  the  appellant  shall  furnish  the  court  with  a  copy 
of  the  notice  of  appeal,  the  judgment  or  order  appealed  from,  and  a  copy 
of  the  papers  used  in  the  hearing  of  the  court  below  ;  such  copies  to  be 
certified  by  the  clerk  to  be  correct.  If  any  written  opinion  be  placed 
on  file  on  rendering  the  judgment,  or  making  the  order  in  the  court 
below,  a  copy  shall  be  furnished.  If  the  appellant  fail  to  furnish  the 
requisite  papers,  the  appeal  may  be  dismissed. 

1.  Where  tlie  respondents  obtained  a  judgment  on  the  23d  of  December,  and  the 
appeal  bond  was  filed  on  tlie  24th  of  December,  and  certificate  of  the  clerk  of  the  same 
court,  dated  February  2d,  1852,  that  no  transcript,  recoixl,  or  other  papers  in  the  cause 
had  been  filed,  and  the  affidavit  of  respondents  was  produced  that  the  appeal  was  taken 
for  delay,  the  court  ordered  the  appeal  to  be  dismissed,  with  ten  per  cent,  damages  and 
costs. — Buckley  \.  Stehbins,  2  Cal.,  149. 

2.  Where  an  appellant  has  foiled  to  file  a  transcript  of  the  record,  showing  that  the 
appeal  had  been  perfected,  the  court  ordered  it  dismissed,  with  ten  per  cent,  dama- 
ges.— Pacheco  v.  Denial,  2  Cal.,  150. 

3.  An  appeal,  which  had  been  dismissed  for  failure  to  file  the  transcript  in  time,  was 
reinstated  upon  good  cause  shown. — Stark  v.  Barnes,  2  Cal.,  162. 

4.  A  case  ought  properly  to  be  dismissed  when  the  appellant  has  not  furnished  the 
court  with  a  brief  or  abstract  of  the  record,  as  the  court  cannot  be  expected  to  do  the 
work  of  counsel. — Sims  v.  Smith,  7  Cal.,  Jan.  T. 

5.  If  there  be  no  statement  required  the  appellate  court  will  not  dismiss  for  want  of 
one. — Bri/an  v.  Berry,  7  Cal.,  July  T. 

f).  The  appellant  must  show,  by  the  certificate  of  the  clerk,  that  the  undertaking  has 
been  filed  in  due  time,  and  if  not  shown  to  have  been  filed,  then  the  respondent  should 
make  his  ol)jcction  by  motion  to  dismiss,  and  not  for  the  first  time  in  his  brief. — Bryan 
v.  Berry,  ib. 

7.  The  time  to  appeal  runs  from  the  making  of  the  final  order  or  judgment  ajipealed 
from,  and  not  from  the  time  of  docketing  the  judgment  roll. — Bank  of  (leneva  v.  Ilotrh- 
kiss,  1  Code  R.,  N.  S.,  153  ;  5  How.  Pr.,  478  ;  Woolen  Manuf.  Co.  v.  Tuwnsend,  1  Code 
R.,  N.  S.,  415. 


§348  APPEALS   FKOM   DISTRICT   COURTS.  177 

CHAPTER  II. 

APPEALS   TO   THE   SUPREME    COURT   FROM   THE   DISTRICT   COURTS. 
See  rnles  of  supreme  court. 

347.  [1854.]  An  appeal  may  be  taken  to  the  supreme  court  from 
the  district  courts  in  the  following  cases: 

1st.  From  a  final  judgment  rendered  in  an  action  or  special  proceed- 
ing commenced  in  those  courts,  or  brought  into  those  courts  from  ano- 
ther court ; 

2d.  From  an  order  granting  or  refusing  a  new  trial ;  from  an  order 
refusing  to  change  the  place  of  trial  of  an  action  or  proceeding  after  a 
motion  is  made  therefor,  in  the  cases  provided  by  law,  or  on  the  ground 
that  a  judge  is  disqualified  from  hearing  or  trying  the  same  ;  from  an 
order  granting  or  dissolving  an  injunction  ;  and  from  any  special  order 
made  after  final  judgment. 

See  Chapter  I,  p.  170,  and  references  there  made. 

1.  An  appeal  may  be  taken  from  a  judgment  of  the  district  court,  without  moving 
for  a  new  trial  in  that  court. — Tunis  v.  Steamer  Senator,  1  Cal.,  459;  Brown  v.  Tolles,  7 
Cal.,  April  T. 

2.  Though  the  plaintiff  recover  less  than  two  hundred  dollars,  the  defendant  is  en- 
titled to  an  appeal,  if  the  costs  added  to  the  judgment  exceed  two  hundred  dollars. — 
Gordonv.  Ross,  2  Cal.,  156. 

3.  Ten  per  cent,  damages  awarded  by  the  supreme  court,  when  the  appeal  was  for 
delay.— i?((ssc//v.  Williams,  2  Cal.,  158. 

4.  The  supreme  com-t,  in  chancery  cases,  has  full  power  and  jurisdiction  on  appeal 
for  the  purpose  of  equity,  to  correct  the  errors  of  the  court  below,  in  wliatcver  shape,  or 
by  whatever  party  the  appeal  is  taken  up. —  Grayson  v.  Guild,  4  Cal.,  122. 

5.  An  appeal  lies  from  an  order  of  injunction  granted  by  a  county  judge. — Crandall 
V.  Woods,  6  Cal.,  449. 

6.  Objections  to  misjoinder  of  parties  cannot  be  taken  on  appeal. — Tissot  v.  TJiroek- 
morion,  6  Cal.,  471  ;   Tihhitts  v.  Percij,  24  Barb.,  39. 

7.  An  appeal  will  not  lie  where  the  amount  in  controversy  is  less  than  two  hundred 
dollars. — Ford  v.  Smith,  7  Cal.,  Jan.  T. 

348.  To  render  an  appeal  effectual  for  any  purpose,  in  any  case,  a 
written  undertaking  shall  be  executed  on  the  part  of  the  appellant,  («) 

(a)  Statutes  of  1856,  26. 
An  act  concerning  Appeals  in  certain  cases,  passed  Feb.  14,  1856. 
1.     When  judgment  has  been  rendered  in  the  court  of  a  justice  of  the  peace,  in  a 


178  APPEALS  FROM  DISTRICT  COURTS.      •      §348 

by  at  least  two  sureties,  to  the  efiect  that  the  appellant  -will  pay  all 
damages  and  costs  which  may  be  awarded  against  him  on  the  appeal, 
not  exceeding  three  hundred  dollars  ;  or  that  sum  shall  be  deposited 
with  the  clerk  with  whom  the  judgment  or  order  was  entered,  to  abide 
the  event  of  the  appeal.  Such  undertaking  shall  be  filed,  or  such  de- 
posit made,  with  the  clerk  within  five  days  after  the  notice  of  appeal  is 
filed. 

1.  The  omission  of  the  words  "  to  pay  to  "  will  not  invalidate  the  obligation  of  an 
appeal  bond. — Billtmjsy.  Roadhouse,  5  Cal.,  71. 

2.  If  an  appeal  be  dismissed  for  want  of  a  proper  bond,  the  party  can  appeal  again, 
within  statute  time. — Martinez  r.  Gallardo,  5  Cal.,  155. 

3.  To  enable  the  assignee  of  a  judgment  to  sue  on  the  appeal  bond  filed  in  the  cause 
he  must  also  have  an  assignment  of  the  bond. — Moses  v.  Thome,  6  Cal.,  87. 

4.  Where  an  appeal  is  withdrawn,  or  dismissed  by  consent,  no  action  can  be  main- 
tained on  the  appeal  bond. — Osborn  v.  Hendrichson,  6  Cal.,  175. 

5.  An  appeal  bond  does  not  impair  the  lien,  and  is  no  substitution  of  the  security. — 
Lowv.  Adams,  6  Cal.,  277. 

6.  Where  a  mere  defective  undertaking  has  been  given  hona  Jide,  and  the  appellant 
will  file  a  good  one  in  proper  time,  it  shall  be  permitted ;  but  where  no  undertaking  has 
been  executed,  the  party  will  not  be  allowed  to  file  one. — Brt/an  v.  Bern/,  7  Cal.,  July  T. 

7.  The  bond  need  not  be  executed  by  the  appellant,  but  only  in  his  behalf. — Cuiiis 
V.  Richards,  8  Cal.,  Jan.  T. 

8.  Giving  security  on  an  appeal  from  an  order  docs  not  stay  proceedings  of  the 
other  party. — Forhesv.  Oaks,  2  Abbott,  120. 

9.  It  is  no  defense  to  an  action  on  this  undertaking,  given  by  several  defendants, 
that  all  but  one  abandoned  the  appeal.  It  is  sufficient  to  render  the  sureties  liable  if 
prosecuted  by  one,  and  the  judgment  be  affirmed. — Burrall  v.  Vande>bilt,&  Abbott,  70. 

10.  If  the  undertaking  substantially  complies  with  the  statute,  and  secures  to  the 
respondent  all  the  law  designed  for  him,  it  is  sufficient. — Coleman  v.  Rowe,  4  Smc.  & 
M.,  747  ;  Smith  v.  jVorval,  2  Code  R.,  14. 

county  court,  a  district  court,  against  any  organized  or  incorporated  city  or  town  in  this 
state,  said  city,  or  town,  or  county,  against  which  such  judgment  was  rendered,  may 
appeal  therefrom  to  any  court  of  competent  jurisdiction,  by  filing  a  notice  of  appeal 
with  the  said  justice  of  the  peace,  or  clerk  of  cither  of  the  other  courts,  as  above  men- 
tioned, and  serving  a  copy  thereof  on  the  opposite  party,  or  his  attorney,  within  the  time 
and  manner  provided  for  ap])eals  in  other  cases ;  and  said  appeals  shall  be  cftectual  for 
all  purposes,  and  shall  operate  as  a  supersedeas  to  any  execution  that  has  been  or  may 
be  issued  on  said  judgment,  without  the  filing  of  a  bond,  or  the  payment  of  costs  to  the 
justice,  or  other  courts,  by  the  said  city,  or  town,  or  county  so  appealing. 

2.  The  mayor,  attorney,  or  chief  officer  of  any  city,  or  district  attorney,  or  the  pres- 
ident of  tlie  board  of  supervisors  of  any  county,  sliall  have  power  to  give  the  notice 
herein  re(|uired  to  be  given,  and  to  perfect  such  ai)peal  on  behalf  of  their  respective  cor 
])orations  or  counties. 


§352  *  APPEALS   FROM   DISTRICT   COURTS.  179 

1 1 .  An  appeal  is  perfected  when  the  proper  undertakni<^,  with  affidavit  of  sureties, 
has  been  executed,  and  notice  of  tlie  appeal  has  been  served  on  the  adverse  party,  and 
on  the  clerk  with  vvliom  the  judgment  or  order  was  entered. — Thompson  v.  Blanchard, 
4  How.  Pr.,  210. 

34S.  If  the  appeal  be  from  a  judgment  or  order  directing  the  pay- 
ment of  money,  it  shall  not  stay  the  execution  of  the  judgment  or  order 
unless  a  written  undertaking  be  executed,  on  the  part  of  the  appellant, 
by  two  or  more  sureties,  stating  their  places  of  residence  and  occupa- 
tion, to  the  eftect  that  they  are  bound  in  double  the  amount  named  in 
the  judgment  or  order,  that  if  the  judgment  or  order  appealed  from,  or 
any  part  thereof,  be  affirmed,  the  appellant  shall  pay  the  amount  di- 
rected to  be  paid  by  the  judgmentfor  order,  or  the  part  of  such  amount 
as  to  which  the  judgment  or  order  shall  be  affirmed,  if  affirmed  only  in 
part ;  and  all  damages  and  costs  which  shall  be  awarded  against  the 
appellant  upon  the  appeal.  .  . 

1.  A  stay  of  proceedings,  from  its  nature,  only  operates  upon  orders  or  judgments 
commanding  some  act  to  be  dona  ;  it  does  not  reach  a  case  of  injunction. — Merced  Min- 
ing Co.  V.  Fremont,  7  Cal.,  Jan.  T. 

2.  A  judgment  directing  the  payment  of  money  out  of  a  fund  in  court,  is  not  a 
judgment  directing  the  payment  of  money,  within  this  section. — Curtis  v.  Leavitt,  1  Ab- 
bott, 274;  10  How.  Pr.,  481. 

350.  If  the  judgment  or  order  appealed  from  direct  the  assignment 
or  delivery  of  documents,  or  personal  property,  the  execution  of  the 
judgment  or  order  shall  not  be  stayed  by  appeal,  unless  the  things  re- 
quired to  be  assigned  or  delivered  be  placed  in  the  custody  of  such 
officer  or  receiver  as  the  court  may  appoint ;  or  unless  an  undertaking 
be  entered  into,  on  the  part  of  the  appellant,  with  at  least  two  sureties, 
and  in  such  amount  as  the  court  or  the  judge  thereof,  or  county  judge, 
may  direct,  to  the  effect  that  the  appellant  will  obey  the  order  of  the 
appellate  court  upon  the  appeal. 

351.  If  the  judgment  or  order  appealed  from  direct  the  execution 
of  a  conveyance  or  other  instrument,  the  execution  of  the  judgment  or 
order  shall  not  be  stayed  by  the  appeal,  mitil  the  instrument  is  execut- 
ed and  deposited  with  the  clerk,  with  whom  the  judgment  or  order  is 
entered,  to  abide  the  judgment  of  the  appellate  court. 

352.  If  the  judgment  or  order  appealed  from  direct  the  sale,  or 
delivery  of  possession  of  real  property,  the  execution  of  the  same  shall 


180  UXDERTAKIXG   ON   APPEAL.  §353 

not  be  stayed,  unless  a  written  undertaking  be  executed  on  the  part 
of  the  appellant,  with  two  or  more  sureties,  to  the  effect  that  during 
the  possession  of  such  property  by  the  appellant,  he  will  not  commit, 
or  suffer  to  be  committed,  any  waste  thereon,  and  that  if  the  judgment 
be  aflBrmed,  he  will  pay  the  value  of  the  use  and  occupation  of  the 
property,  from  the  time  of  the  appeal  until  the  delivery  of  possession 
thereof,  pursuant  to  the  judgment  or  order,  not  exceeding  a  sum  to  be 
fixed  by  the  judge  of  the  court  by  which  the  judgment  was  rendered 
or  order  made,  and  which  shall  be  specified  in  the  undertaking.  When 
the  judgment  is  for  the  sale  of  mortgaged  premises,  and  the  payment 
of  a  deficiency  arising  upon  the  sale,  the  undertaking  shall  also  pro- 
vide for  the  payment  of  such  deficiency. 

353.  Whenever  an  appeal  is  perfected,  as  provided  by  the  preced- 
ing sections  in  this  chapter,  it  shall  stay  all  further  proceedings  in 
the  court  below,  upon  the  judgment  or  order  appealed  from,  or  upon  the 
matter  embraced  therein ;  but  the  court  below  may  proceed  upon  any 
other  matter  included  in  the  action,  and  not  affected  by  the  judgment 
or  order  appealed  from.  And  the  court  below  may,  in  its  discre- 
tion, dispense  with,  or  limit  the  security  required  by  said  sections, 
when  the  appellant  is  an  executor,  administrator,  trustee,  or  other 
person  acting  in  another's  right. 

354.  The  undertaking  prescribed  by  sections  three  hundred  and 
forty-eight,  three  hundred  and  forty-nine,  three  hundred  and  fifty,  and 
three  hundred  and  fifty-two,,  may  be  in  one  instrument,  or  several,  at 
the  option  of  the  appellant. 

355.  [1854.]  An  imdcrtaking  upon  an  appeal  shall  be  of  no  ef- 
fect unless  it  be  accompanied  by  the  affidavit  of  the  sureties,  that  they 
are  each  worth  the  amount  specified  therein  over  and  above  all  their 
just  debts  and  Uabilities,  exclusive  of  property  exempt  from  execu- 
•tion,  except  where  the  judgment  exceeds  three  thousand  dollars,  and 
the  undertaking  on  appeal  is  executed  by  more  than  two  sureties,  they 
may  state  on  their  affidavit  that  tliey  are  severally  worth  amounts  less 
than  that  expressed  in  the  undertaking,  if  the  whole  amount  be  equiv- 
alent to  that  of  two  sufficient  sureties.  The  adverse  party  may,  how- 
ever, except  to  the  sufficiency  of  the  sureties  within  five  days  after 
the  filing  of  the  undertaking,  and  unless  they  or  other  sureties  justify 
before  a  judge  of  the  court  below,  or  a  county  judge,  or  the  county 


§358  UNDERTAKING    ON   APPEAL.  181 

clerk,  within  five  days  thereafter,  upon  notice  to  the  adverse  party,  to 
the  amounts  stated  in  theu'  affidavits,  the  appeal  shall  be  regarded  as 
if  no  such  undertaking  had  been  given,  and  in  all  cases  -where  an  un- 
dertaking is  required  on  appeal  by  the  provisions  of  this  chapter,  a 
deposit  in  the  court  below  of  the  amount  of  the  judgment  appealed 
from,  and  three  hundred  dollars  in  addition,  shall  be  equivalent  to 
filing  the  undertaking,  and  in  all  cases  the  undertaking  or  deposit  may 
be  waived  by  the  written  consent  of  the  respondent. 

1.  On  an  application  for  justification  of  sureties  on  an  appeal,  the  Hierits  of  the  ap- 
peal will  not  be  considered. — Bradley  \.  Hall,  1  Cal.,  199. 

2.  That  the  undertaking  be  approved,  is  an  important  feature  in  perfecting  an  ap- 
peal.—  Wade  V.  Am.  Col.  Soc,  4  Sme.  &  M.,  670. 

3.  The  exception  should  be  to  "  sureties,"  and  not  to  the  undertaking. —  Yowu/  v. 
Colby,  2  Code  R.,  68. 

4.  The  sureties  need  only  justify  to  double  the  amount  of  the  judgment. — Rich  v. 
Beehnan,  2  Code  R.,  63. 

356.  In  cases  not  provided  for  in  sections  three  hundred  and  for- 
ty-nine, three  hundred  and  fifty,  three  hundred  and  fifty-one,  and 
three  hundred  and  fifty-two,  the  perfecting  of  an  appeal,  by  giving  the 
midertaking,  and  the  justification  of  the  sureties  thereon,  if  required, 
or  making  the  deposit  mentioned  in  section  three  hundred  and  forty- 
eight,  shall  stay  proceedings  in  the  court  below  upon  the  judgment  or 
order  appealed  from  ;  except  that  where  it  directs  the  sale  of  perish- 
able property,  the  court  below  may  order  the  property  to  be  sold,  and 
the  proceeds  thereof  to  be  deposited,  to  abide  the  judgment  of  the  ap- 
pellate court. 

357.  ■  [1854.]  Appeals  in  the  supreme  court  may  be  brought  to 
a  hearing  by  either  party,  upon  a  notice  of  three  days  to  the  opposite 
party.  Before  the  argument  each  party  shall  furnish  to  the  other, 
and  each  of  the  justices,  a  copy  of  his  points  and  authorities,  or 
either  party  may  file  one  copy  thereof  with  the  clerk,  who  shall  cause 
the  requisite  copies  to  be  made. 

1.  When  appellant  notices  case  for  argument,  respondent  may  affirm  the  judgment, 
ex  parte,  although  he  gave  no  notice. —  CoiistantY.  Ward,  1  Cal.,  333. 

358.  When  judgment  is  rendered  upon  the  appeal,  it  shall  be  cer- 
tified by  the  clerk  of  the  supreme  court  to  the  clerk  with  whom  the 
judgment  roll  is  filed,  or  the  order  appealed  from  is  entered.     In  cases 


182  APPEALS  FROM  COUNTY  COURTS.  §359 

of  appeal  from  the  judgment,  the  clerk  with  -whom  the  roll  is  filed 
shall  attach  the  certificate  to  the  judgment  roll,  and  enter  a  minute  of 
the  judgment  of  the  supreme  court  on  the  docket  against  the  original 
entry.  In  cases  of  an  appeal  from  the  order,  the  clerk  shall  enter  at 
length  in  the  records  of  the  court  the  certificate  received,  and  minute 
against  the  entry  of  the  order  appealed  from,  a  reference  to  the  certif- 
icate, with  a  brief  statement  that  such  order  has  been  affirmed,  re- 
versed, or  modified,  as  the  case  may  be,  by  the  supreme  court,  on 
appeal. 

See  Sees.  657  and  665. 

1.  AVhcre  a  remittitur  is  sent  down,  the  clerk  of  the  district  court  may  issue  exe- 
cution for  costs. — Mayor  of  the  citij  of  Marjjsville  v.  Buchanan,  3  Cal.,  212. 

2.  After  a  cause  has  been  regularly  remitted  to  the  court  below,  this  court  has  no  juris- 
diction to  grant  relief.  The  only  remedy  is  a  new  appeal. — Frazer  v.  Western,  3  How. 
Pr.,  235  ;  Dresser  v.  Brooks,  4  How.  Pr.,  207. 


CHAPTER  III. 

APPEALS  TO  THE  DI^TRKm;  [SUPREME]  COURTS  FROM  TUE 
COUNTY  COURTS. 

1.  The  appellate  jurisdiction  of  district  courts  held  unconstitutional. — People  v.  Pe- 
ralto,  3  Cal.,  379  ;  Caultickl  v.  Hudson,  3  Cal.,  389 ;  Hernandes  v.  Simon,  3  Cal.,  464  ; 
Reed  v.  McCormick,  4  Cal.,  342;  Townsend  v.  Brooks,  5  Cal.,  52. 

350.  [1854.]  An  appeal  may  be  taken  to  the  supreme  court 
from  a  judgment  of  the  county  court,  in  all  cases  where  the  amount 
in  dispute  exceeds  two  hundred  dollars,  or  where  the  legality  of  any 
tax,  toll  or  impost,  or  municipal  fine,  is  in  question. 

1.  Tliough  the  plaintiff  recover  less  than  two  hundred  dollars,  the  defendant  is  en- 
titled to  an  appeal,  if  the  costs  added  to  tlie  judgment  exceed  two  hundred  dollars. — 
Gordon  v.  Ross,  2  Cal.,  156. 

3G0.  [1854.]  Security  shall  be  given  upon  such  appeal  in  the 
same  manner  and  to  the  same  extent  as  upon  an  appeal  to  the  su- 
preme court  from  the  district  court,  and  like  justification  on  the  part 
of  the  sureties  may  be  required. 

3G1.  [1854.]  iVppeals  from  the  county  courts  shall  be  brought 
to  a  hearing  in  the  same  manner,  and  upon  like  notice,  as  appeals  from 
the  district  court. 


§363  APPEALS  FROM  PROBATE  COURTS.  183 

302.  [1854.]  The  appellant  shall  furnish  the  papers  for  the  su- 
preme court,  in  the  same  manner  as  upon  appeals  from  the  district 
court. 

CHAPTER  IV. 

APPEALS   TO   THE   DlgTftiCL_COURTS    [SUPREME   COURT]    FROM   THE 
PROBATE    COURTS. 

1.  The  appellate  jurisdiction  of  the  district  court  declared  unconstitutional.  Sec 
Chapter  III,  p.  182. 

2.  Issues  made  in  the  probate  courts  are  certified  to,  and  are  to  be  tried  in  the  dis- 
trict courts,  from  which  appeals  lie  to  the  supreme  court.     See  statute  cited  in  note  a. 

363.  An  appeal  (a)  may  be  taken  from  a  probate  court  to  the 
district  court  of  the  district  in  which  the  probate  court  is  held,  in 
the  following  cases : 

(a)     Statutes  of  1855,  301  ;  Wood's  Digest,  421,  art.  2345. 

8.  An  appeal  may  be  taken  to  the  supreme  court  from  an  order,  decree  or  judgment 
of  the  probate  court,  where  the  estate  or  amount  in  dispute  exceeds  two  hundred  dol- 
lars, in  the  following:  cases  : 

1st.  For,  or  against  granting  or  revoking  letters  testamentary  or  of  administra- 
tion ; 

2d.  For,  or  against  admitting  a  will  to  probate  ; 

3d.  For,  or  against  the  validity  of  a  will,  or  revoking   the  probate  thereof  ; 

4th.  For,  or  against  setting  apart  property,  or  making  an  allowance  for  a  widow  or 
child  ; 

5th.  For,  or  against  directing  the  sale  or  conveyance  of  real  property  ; 

6th.  On  the  settlement  of  an  executor  or  administrator  ; 

7th.  For,  or  against  declaring,  allowing  or  directing  the  payment  of  a  debt,  claim, 
legacy  or  distributive  share. 

9.  The  appeal  may  be  taken  within  sixty  days  after  the  order,  decree  or  judgment 
is  made  and  entered  in  the  minutes  of  the  court ;  it  shall  be  made  by  filing  with  the 
clerk  of  the  probate  court,  a  notice  stating  the  appeal  from  the  order,  decree  or  judg- 
ment, or  some  specific  part  thereof,  and  by  executing  an  undertaking,  or  giving  surety, 
on  such  appeal  in  tlie  same  manner,  and  to  the  same  extent,  as  upon  an  appeal  to  the 
supreme  court  from  the  district  court ;  provided,  the  appeal  of  an  executor  or  admin- 
istrator who  has  given  an  ofiicial  bond,  shall  be  complete  and  effectual  without  the  un- 
dertaking ;  provided  also,  from  an  order,  decree  or  judgment,  made  since  tlie  first  day  of 
October,  eighteen  hundred  and  fifty-four,  the  a]ipeal  may  be  taken  within  sixty  days 
after  the  passage  of  this  act.  After  the  appeal  is  determined,  suit  may  be  brougiit  and 
prosecuted  to  judgment  on  the  undertaking,  in  the  name  of  any  party  beneficially  in- 
terested therein.    -^ 


J  84  APPEALS  FROM  PROBATE  COURTS.  §3G4 

1st.  From  an  order  or  decree  admitting  a  will  to  probate,  or  refu- 
sing the  same ; 

2d.  From  an  order  setting  apart  property,  or  making  an  allowance 
for  the  widow  or  children  ; 

3d.  From  an  order  granting  letters  testamentary  or  of  administra- 
tion, or  appointing  a  guardian  of  an  infant,  or  of  an  insane  person,  or 
of  a  person  incompetent  to  manage  his  property,  or  refusing  to  grant 
such  letters,  or  to  make  such  appointment,  or  making  such  letters  or 
appointment  ; 

-Ith.  From  an  order  directing  the  sale  or  conveyance  of  real  property ; 

oth.  From  an  order  or  decree  by  which  a  debt,  claim,  legacy,  or 
distributi\'e  share  is  allowed,  or  payment  thereof  dii'ected  ;  or  by  which 
such  allowance  or  direction  is  refused  ; 

Gth.  From  an  order  made  on  the  settlement  of  an  executor,  admin- 
istrator or  guardian. 

304.  The  appeal  shall  1)0  taken  within  thirty  days  after  the  order 
or  decree  appealed  from  is  entered  Avith  the  clerk. 

865.  [1854.]  Appeals  from  the  probate  court  shall  be  brought  to 
a  hearing  at  the  earliest  period  practicable.  For  a  failure  to  prose- 
cute an  ap})cal,  or  unnecessary  delay  in  bringing  it  to  a  hearing,  the 
district  court  may  order  the  appeal  dismissed. 

10.  "When  a  party  who  has  a  right  to  appeal,  wishes  a  statement  of  the  case  to  be 
annexed  to  the  reeord,  he  shall  prepare  and  file  the  same  witiiin  twenty  days  after  the 
entry  of  the  order,  decree,  or  judf^ment ;  Pruviik-d,  if  the  order,  decree  or  judgment  has 
l)ecn  made  since  tlie  first  day  of  Octol)er,  eighteen  hundred  and  fifty-four,  he  shall  pre- 
pare and  file  such  statement  within  twenty  days  after  the  passage  of  this  act. 

11.  The  provisions  as  amended,  of  Chapter  I,  Title  IX.,  of  the  Practice  Act,  so  far 
as  the  same  do  not  conflict  witli  the  provisions  of  tnis  act  sliall  be  applicai)le  to  appeals 
from  tiie  probate  court. 

12.  When  an  issue  is  certified  for  trial,  the  clerk  of  the  probate  court  sliall  transmit 
all  papers  and  records  necessary  for  the  trial  of  the  issue,  to  the  district  court ;  after 
such  trial  the  clerk  of  the  district  court  shall  return  the  same,  with  tlic  proceedings  of 
the  court,  to  the  probate  court. 

13.  Wiicrc  it  is  not  otherwise  prescribed  bj*  law,  the  probate  court  or  tiie  supreme 
court  on  appeal,  may,  in  its  discretion,  order  costs  to  be  paid  by  any  party  to  the  pro- 
ceedings, or  out  of  the  estate,  as  justice  may  require ;  execution  for  the  costs  may  issue 
out  of  the  probate  court. 


§367  APPEALS  TO  COUNTY  COURTS.  185 


CHAPTER  V. 

appeals  to  the  county  courts  from  justices'  and 
recorders'  courts. 

366.  [1854.]  Judgments  in  all  civil  cases  rendered  bj  justices', 
recorders'  and  mayors'  courts,  may  be  reviewed  by  the  county  court ; 
■when  the  appeal  is  taken  on  questions  of  law  alone,  it  shall  be  heard  on 
a  statement  of  the  case  prepared  as  prescribed  in  Title  XVI  of  this  Act. 
When  the  appeal  is  taken  on  questions  of  fact,  or  on  questions  of  both 
law  and  fact,  the  action  shall  be  tried  anew  in  the  county  court,  and 
either  party  may,  on  such  trial,  demand  a  jury. 

1.  "Where  both  parties  appear,  no  notice  of  appeal  is  necessary  to  be  shown. — Mc- 
Leran  v.  Shartzer,  5  CaL,  70. 

2.  The  county  court  where  an  appeal  bond  is  defective,  should  give  leave  to  file  a 
good  bond. — Billings  v.  Roadhouse,  fy  Cab,  71. 

3.  The  trial  on  appeal  in  county  courts  must  be  de  novo,  and  the  judgment  of  the 
justice's  court  cannot  be  reversed  for  error. — Coijle  v.  Baldwin,  5  Cal.,  75. 

4.  A  sufficient  excuse  for  failing  to  produce  an  appeal  bond  will  be  heard  by  the 
court,  and  if  admitted,  a  bond  maybe  allowed  to  be  filed. — Howard  v.  Harman,  5  Cal.,  78. 

5.  In  an  appeal  notice,  the  words  "  whole  judgment "  are  sufficiently  definite. — 
Price  V.  Van  Caneghan,  5  Cal.,  123. 

6.  The  county  court  has  no  jurisdiction  to  enforce  a  mechanic's  lien,  where  the 
amount  in  controversy  exceeds  two  hundred  dollars. — Brock  y.  Bruce,  5  Cal.,  279. 

7.  Where  the  judgment  of  the  court  below  exceeds  in  amount  the  jurisdiction,  the 
county  court  on  appeal,  should  dismiss  the  whole  case. — Ford  v.  Smith,  5  Cal.,  331. 

8.  The  power  of  the  county  court  to  treble  damages  by  way  of  penalty,  in  actions 
of  forcible  entry,  results  by  implication  from  a  power  to  try  de  novo. — O'Callaghan  v. 
Booth,  6  Cal.,  63. 

9.  If  the  appeal  be  on  points  of  law  alone,  and  a  new  trial  be  granted,  such  new 
trial  shall  be  had  in  the  county  court  after  a  reasonable  time. — People  v.  Freelon,  7  Cal., 
Oct.  T. 

367.  [1854.]  Upon  an  appeal  heard  upon  a  statement  of  the 
case,  the  county  court  may  review  all  orders  affecting  the  judgment 
appealed  from,  and  may  set  aside,  or  confirm,  or  modify  any  or  all  of 
the  proceedings  subsequent  to,  or  dependent  upon,  said  judgment ; 
and  may,  if  necessary  or  proper,  order  a  new  trial.  When  the  action 
is  tried  anew,  on  appeal,  the  trial  shall  be  conducted  in  all  respects,  as 
trials  in  the  district  court.  The  provisions  of  this  act,  as  to  changing 
the  place  of  trial,  and  all  the  provisions  as  to  trials  in  the  district  court, 

M 


186  PKOCEEDINGS  AGAINST  JOINT  DEBTORS.  §308 

shall  be  applicable  to  trials  on  appeal  in  the  county  court.  For  a  fail- 
ure to  prosecute  an  appeal,  or  unnecessary  delay  in  bringing  it  to  a 
hearing,  the  county  court,  after  notice,  may  order  the  appeal  to  be  dis- 
missed. Judgments  rendered  in  the  county  court  on  appeal,  shall  have 
the  same  force  and  effect,  and  be  enforced  in  the  same  manner,  as  judg- 
ments in  actions  commenced  in  the  district  court. 

See  Sees.  624-629,  640. 


TITLE    X. 

MISCELLANEOUS  PROCEEDINGS. 

CHAPTER  I. 

PROCEEDINGS   AGAINST   JOINT   DEBTORS. 

368.     When  a  judgment  is  recovered  against  one  or  more  of  sev- 
eral persons,  jointly  indebted  upon  an  obligation,  by  proceeding,  as 
provided  in  section  thirty-two,  those  who  were  not  originally  served 
oT.  T* .       Avith  the  summons,  and  did  not  appear  in  the  action,  may  be  summoned 
to  show  cause  why  they  should  not  be  bound  by  the  judgment,  in  the 
same  manner  as  though  they  had  been  originally  served  with  the 
.    ^    summons. 
.-■^        See  Sec.  32. 

1.  In  a  suit  against  partners,  judgment  can  be  taken  only  against  those  served  with 
process. — Imjraham  v.  Gildcmeester,  2  Cal.,  88. 

2.  When  some  of  the  defendants  arc  not  served  with  process,  the  plaintiff  may  pro- 
ceed against  those  served. — lb. 

3.  A  covenant  not  to  sue  made  to  a  portion  only  of  Joint  debtors,  does  not  release 
any  of  them.— Matt/ie)/  v.  GnUij,  4  Cal.,  62. 

4.  In  an  action  against  two  defendants  on  a  joint  and  several  obligation,  the  entry  of 
a  final  judgment  on  default  against  one  is  the  discharge  of  the  other. — Stearns  wAguirre, 
6  Cal.,  176. 

5.  A  release  of  one  joint  debtor  is  a  release  of  the  other  ;  but  it  must  be  a  technical 
release  under  seal. — Armstromi  v.  Jldijwnrd,  6  Cal.,  183. 

6.  In  such  a  proceeding,  does  the  cause  of  action  or  right  to  proceed  arise  upon 
judgment  or  the  original  demand  ? — Oakley  v.  Aspinu-aU,  4  Corns.,  513. 


J 


§374  CONFESSION   OF   JUDGMENT.  187 

369.  The  summons  as  provided  in  the  last  section,  sliall  describe 

the  judgment,  and  require  the  person  summoned  to  show  cause  why      (J~f 
he  should  not  be  bound  by  it,  and  shall  be  served  in  the  'same  manner, 
and  returnable  Avithin  the  same  time,  as  the  original  summons.     It 
shall  not  be  necessary  to  file  a  new  complaint. 

370.  The  summons  shall   be  accompanied  by  an  affidavit  of  the 
plaintiff,  his  agent,  representative,  or  attorney,  that  the  judgment,  or    cX^ 
some  part  thereof,  remains  unsatisfied,  and  shall  specify  the  amount 

due  thereon. 

371.  Upon  such  summons,  the  defendant  may  answer  within  the 
time  specified  therein,  denying  the  judgment,  or  setting  up  any  defense 

which  may  have  arisen  subsequently  ;  or  he  may  deny  his  liability  on     '^  •  -P. 
the  obligation  upon  which  the  judgment  was  recovered,  except  a  dis- 
charge from  such  liability  by  the  statute  of  limitation. 

372.  If  the  defendant  in  his  answer  deny  the  judgment,  or  set  up 
any  defense  which  may  have  arisen  subsequently,  the  summons,  with 

the  affida\dt  annexed,  and  the  answer,  shall  constitute  the  written  alle- J  I?* 
gations  in  the  case  ;  if  he  deny  his  liability  on  the  obligation  upon 
which  the  judgment  was  recovered,  a  copy  of  the  original  complaint 
and  judgment,  the   summons  with  the  affidavit  annexed,  and  the  an- 
swer, shall  constitute  such  written  allegations. 

373.  The  issues  formed  may  be  tried  as  in  other  cases  ;  but  when 

the  defendant  denies,  in  his  answer,  any  liability  on  the  obligation  upon    T*^ 
which  the  judgment  was  rendered,  if  a  verdict  be  found  against  him,  '^'-~  • 
it  shall  be  for  the  amount  remaining  unsatisfied  on  such  original  judg- 
ment, with  interest  thereon. 


CHAPTER  II. 

CONFESSION   OF   JUDGMENT   WITHOUT   ACTION. 

374.  A  judgment  by  confession  may  be  entered  without  [action, 
either  for  money  due,  or  to  become  due,  or  to  secure  any  peri^on 
against  contingent  liabiUty  on  behalf  of  the  defendant,  or  both,  in  the 
manner  prescribed  by  this  chapter. 


188  CONFESSION   OF  JUDGMENT.  §375 

1.  A  junior  jTidgingnt  creditor  must  resort  to  a  court  of  equity  if  he  is  dissatisfied 
with  the  Ijoua  fides^OT  the  confession  of  judgment. — Arrinjton  v.  Sherry,  5  Cal.,  513. 

2.  A  judgment  confessed  for  the  purpose  of  hindering,  delaying  or  defraudmg  cred 
itors,  is  void  as  to  such  creditors  — Zi'yaH  v.  Daly,  6  Cal.,  2.38. 

3.  The  court  may  set  aside  a  judgment  entered  therein,  for  a  defect  in  the  statement 
upon  which  it  is  entered,  on  the  application  of  a  junior  judgment  creditor. —  Chajipel  v. 
Chappel,  2  Kern.,  215. 

4.  A  public  officer  who  is  liable  to  be  sued  for  services  rendered  for  the  public,  at 
his  request  may  confess  a  judgment  in  his  official  capacitj',  for  the  amount. —  Geie  v. 
Supeifisors  of  Cayuga  county,  7  How.  Pr.,  255. 

5.  On  a  judgment  by  confession  there  is  no  suit,  no  recovery  or  adjudication  until 
the  judgment  is  entered  Iiy  the  clerk ;  and  this  act  not  only  creates  the  lien,  but  the 
judgment. — Blyndenhurgh  v.  Northrop,  13  ib.,  289. 

6.  Whether  a  person  not  a  direct  party  to  a  confessed  judgment,  but  complaining 
of  its  injurious  operation,  shall  be  heard  summarily  on  informal  affidavits,  or  be  put  to 
the  more  tedious  remedy  by  a  bill  in  equity,  depends  upon  the  particular  circumstances 
in  each  particular  case,  to  be  judged  of  after  the  affidavits  on  both  sides  have  been  read. 
Tiie  usual  course  has  been  to  grant  the  same  relief  on  motion,  as  might  be  obtained  on 
formal  suit. — Loivher  v.  Mayor  of  New  York,  5  Abbott,  325,  484. 

7.  A  judgment  confessed  by  one  partner,  in  tlie  name  of  himself  and  his  copartner, 
is  void  as  to  his  coi)artner. — Morgan  v.  Richardson,  16  AIo.,  409;  Stoutenburgh  v. 
Vandenburgh,  7  How.  Tr.,  229  ;  Evtrsojir.  Gthrman,  10  ib.,  301. 

375.  A  statement  in  -writing  shall  be  made,  signed  by  the  defend- 
ant, and  verified  by  his  oath  to  the  foUovring  effect : 

1st.  It  shall  authorize  the  entry  of  judgment  for  a  specified  sum  ; 

2d.  If  it  be  for  money  due,  or  to  become  due,  it  shall  state  concisely 
the  facts  out  of  which  it  arose,  and  shall  show  that  the  sum  confessed 
therefor  is  justly  due,  or  to  become  due  ; 

3d.  If  it  be  for  the  purpose  of  securing  the  plaintiff  against  a  con- 
tingent liability,  it  shall  state  concisely  the  facts  constituting  the  lia- 
bility, and  shall  show  that  the  sum  confessed  therefor  does  not  exceed 
the  same. 

1.  The  failure  to  make  all  the  disclosures  in  the  statement  is  prima  facie  evidence 
of  fraud,  and  must  be  explained. — Richards  v.  McMillan,  6  Cal.,  419. 

2.  The  facts  out  of  which  the  indebtedness  arose,  as  evidenced  by  a  promissory 
note,  should  be  concisely  s^tatcCi.— Chappel  v.  Chappel,  2  Kern.,  215 ;  Plummcr  v.  Plum- 
mer,  7  How.  Pr.,  62  ;  Boydcn  v.  Johnson,  11  ib.,  503;  Ilop/wck  v.  Donaldson,  12  ib.,  141 
Siebbins  v.  East  Society  of  the  M.  E.  Church,  ib.,  410  ;  Gandal  v.  Finn,  13  ib.,  418  ;  23; 
Barb.,  652  ;  Thompson  v.  T  oh  Vechten,  5  Abbott,  458  ;  Ucaly  v.  Preston,  14  How.  Pr.,  20. 

3.  The  statement  in  wn-iting  must  show  that  the  sum  confessed  is  justly  due. — 
Schoolcraft  v.  Thompson,  7  How.  Pr.,  446. 

4.  A  statement  for  confession  of  judgment  which  recites  generally  that  the  judgment 


§379  SUBMITTING  A  CONTROVERSY.  189 

■was  for  goods  solil  ami  delivered,  or  on  a  note  given  for  goods  sold  and  delivered,  is 
insufficient. — Mootli/  v.  Townsciul,  3  Abbott,  375  ;  Von  Beck  v.  S/nnnan,  13  IIow.  Pr.,  472. 

376.  The  statement  shall  be  filed  with  the  clerk  of  the  county  in 
which  the  judgment  is  to  be  entered,  who  shall  endorse  upon  it,  and 
enter  in  the  judgment  book  a  judgment  of  such  court,  for  the  amount 
confessed,  with  ten  dollars  costs.  The  statement  and  affidavit,  with 
the  judgment  endorsed,  shall  thereupon  become  the  judgment  roll. 

1 .  The  court  will  not  allow  a  party  to  suffer  by  the  omission  or  mistake  of  a  clerk, 
attorney  or  officer  of  the  court,  where  a  substantial  right  is  involved,  on  a  confession  of 
judgment. — Xeele  v.  Berryhill,  4  How.  Pr.,  16. 


CHAPTER  III. 

SUBMITTING   A   CONTROVERSY   WITHOUT   ACTION. 

377.  Parties  to  a  question  in  difference,  which  might  be  the  sub- 
ject of  a  civil  action,  may,  without  action,  agree  upon  a  case  contain- 
ing the  facts  upon  which  the  controversy  depends,  and  present  a  sub- 
mission of  the  same  to  any  court  which  would  have  jurisdiction,  if  an 
action  had  been  brought.  But  it  must  appear,  by  affidavit,  that  the 
controversy  is  real,  and  the  proceedings  in  good  faith,  to  determine 
the  rights  of  the  parties.  The  court  shall  thereupon  hear  and  deter- 
mine the  case,  and  render  judgment  thereon,  as  if  an  action  were  de- 
pending. 

1 .  It  is  a  general  rule  that  the  court  will  not  entertain  a  fictitious  case,  to  test  a 
right  to  a  particular  thing. — Port  Gibson  Bank  v.  Dickson,  4  Sme.  &  M.,  689  ;  Brew- 
ington  v.  Lowe,  1  Ind.,  (Carter,)  21. 

378.  Judgment  shall  be  entered  in  the  judgment  book  as  in  other 
cases,  but  without  costs  for  any  proceeding  prior  to  the  trial.  The 
case,  the  submission,  and  a  copy  of  the  judgment,  shall  constitute  the 
judgment  roll. 

379.  The  judgment  may  be  enforced  in  the  same  manner  as  if  it 
had  been  rendered  in  an  action,  and  shall  be  in  the  same  manner  sub- 
ject to  appeal. 


190  ARBITRATIONS.  §380 


CHAPTER  IV. 

OF   ARBITRATIONS. 

380.  Persons  capable  of  contracting  may  submit  to  arbitration  any 
controversy  whicli  might  be  the  subject  of  a  civil  action  between 
them,  except  a  question  of  title  to  real  property  in  fee  or  for  life. 
This  qualification  shall  not  include  questions  relating  merely  to  the 
partition  or  boundaries  of  real  property. 

1.  A  reference  may  be  an  arbitration,  and  the  report  thereon  an  award. — Blunt  v. 
Whitney,  3  Sand.,  4. 

381.  The  submission  to  arbitration  shall  be  in  writing,  and  may  be 
to  one  or  more  peisous. 

See  Sec.  529. 

1.  Submission  to  arbitration  discontinues  a  suit.  A  consent  to  submit  to  arbitra- 
tion does  not  authorize  an  entry  of  judgment.     Gimter  v.  Sanchez,  1  Cal.,  45. 

382.  It  may  be  stipulated  in  the  submission,  that  it  be  entered  as 
an  order  of  the  county  court,  or  of  the  district  court,  for  which  pur- 
pose it  shall  be  filed  with  the  clerk  of  the  county  where  the  parties, 
or  one  of  them,  reside.  The  clerk  shall,  thereupon,  enter  in  his  regis- 
ter of  actions  a  note  of  the  submission,  with  the  names  of  the  parties, 
the  names  of  the  arbitrators,  the  date  of  the  submission,  when  filed,  and 
the  time  limited  by  the  submission,  if  any,  within  which  the  award 
shall  bo  made.  When  so  entered,  the  submission  shall  not  be  revoked 
without  the  consent  of  l^oth  parties.  The  arbitrators  may  be  compelled 
by  the  court  to  make  an  award,  and  the  award  maybe  enforced  by  the 
court,  in  the  same  manner  as  a  judgment.  If  the  submission  be  not 
made  an  order  of  the  court,  it  may  be  revoked  at  any  time  before  the 
award  is  made. 

383.  Arbitrators  shall  have  power  to  appoint  a  time  and  place  for 
hearing,  to  adjourn  from  time  to  time,  to  administer  oaths  to  witnesses, 
to  hear  the  allegations  and  evidence  of  the  parties,  and  to  make  an 
award  thereon. 

1.  Arbitrators  are  not  l)uund  to  decide  according  tohiw. — Muldrowv.  Xunis,  2  Cal., 
74  ;  Peachy  v.  liltrhie,  4  Cal.,  205. 


§385  ARBITRATIONS.  191 

2.  Where  parties  refer  all  differences  to  arbitration,  it  is  the  duty  of  the  arbitrators 
to  pass  upon  the  whole  subject  in  controversy,  and  if  it  appear  upon  the  face  of  the 
award  that  they  have  not  disposed  of  the  whole  matter,  but  have  left  a  part  open,  or  if 
the  terms  of  the  award  be  such  as  to  render  a  further  inquiry  necessary  to  ascertain  a 
sum  of  money  to  be  paid  or  some  act  to  be  done,  it  is  void,  and  will  be  set  aside. — Por- 
ter V.  Scott,  7  Cal.,  April  T. 

3.  If  the  amount  involved  be  over  $200,  it  cannot  be  entered  as  an  order  of  the 
county  court. —  WiUkims  v.   Walton,  8  Cal.,  Jan.  T. 

4.  When  an  arbitrator  exceeds  his  authority,  the  effect  of  his  act  is  void,  whether 
done  conscientiously  or  by  mistake. — Boirowe  v  Milbank,  5  Abbott,  28. 

5.  Wliere  witnesses  were  examined  without  being  sworn,  and  no  objection  taken 
thereto,  it  will  be  presumed  the  parties  assented  thereto. — Bergh  v.  Pfeiffer,  Lalor's 
Sup.,  110. 

384.  All  the  arbitrators  shall  meet  and  act  together  during  the 
investigation ;  but  when  met,  a  majority  may  determine  any  question. 
Before  acting,  they  shall  be  sworn  before  an  officer  authorized  to  ad- 
minister oaths,  faithfully  and  fairly  to  hear  and  examine  the  allegations 
and  evidence  of  the  parties,  in  relation  to  the  matters  in  controversy, 
and  to  make  a  just  award,  according  to  their  understanding. 

385.  The  award  shall  be  in  writing,  signed  by  the  arbitrators,  or  a 
majority  of  them,  and  delivered  to  the  parties.  When  the  submission 
is  made  an  order  of  the  court,  the  award  shall  be  filed  with  the  clerk, 
and  a  note  thereof  made  in  his  register.  After  the  expiration  of  five 
days  from  the  filing  of  the  award,  upon  the  appHcation  of  a  party,  and 
on  filing  an  affidavit,  showing  that  notice  of  filing  the  award  has  been 
served  on  the  adverse  party  or  his  attorney,  at  least  four  days  prior 
to  such  application,  and  that  no  order  staying  the  entry  of  judgment 
has  been  served,  the  award  shall  be  entered  by  the  clerk  in  the  judg- 
ment book,  and  shall  thereupon  have  the  eSect  of  a  judgment. 

1.  Where  the  arbitration  is  to  end  litigation,  and  becomes  uncertain  and  incomplete, 
it  must  be  .set  aside. — Pierson  v.  Norman,  2  Cal.,  399. 

2.  The  statute  must  be  pursued  in  the  manner  in  which  the  submission  is  filed  with 
the  clerk,  and  the  motion  made  for  judgment  on  tlie  award. — Ileslep  v.  Citi/  of  San 
Francisco,  4  Cal.,  1. 

3.  An  award  rendered  upon  a  fair  arbitration  and  concurred  in,  is  conclusive. — Jar- 
vis  v.  Fountain  Water  Co.,  5  Cal.,  179. 

4.  A  valid  award  made  by  an  arbitrator  upon  a  cause  of  action,  is  a  bar  to  a  suit 
thereon,  although  the  award  has  not  been  performed. — Brazill  v.  Mam,  2  Kern.,  9. 

5.  An  award  which  leaves  nothing  to  be  done,  to  dispose  of  the  whole  matter  in  con- 
troversy, except  mere  ministerial  acts,  is  sutMciently  certain  and  final. — Owen  v.  Boerum, 
23  Barb.,  187. 


192  ARBITRATIOX.  §386 

386.  The  court,  on  motion,  may  vacate  the  award  upon  either  of 
the  following  grounds,  and  may  order  a  new  hearing  before  the  same 
arbitrators,  or  not,  in  its  discretion : 

1st.  That  it  was  procured  by  corruption  or  fraud  ; 

2d.  That  the  arbitrators  were  guilty  of  misconduct,  or  committed 
gross  error  in  refusing,  on  cause  shown,  to  postpone  the  hearing,  or  in 
refusing  to  hear  pertinent  evidence,  or  otherwise  acted  improperly,  in 
a  manner  by  which  the  rights  of  the  party  were  prejudiced  ; 

3d.  That  the  arbitrators  exceeded  their  powers  in  making  their 
award  ;  or  that  they  refused,  or  improperly  omitted,  to  consider  a  part 
of  the  matters  submitted  to  them  ;  or  that  the  award  is  indefinite,  or 
cannot  be  performed. 

387.  The  court  may,  on  motion,  modify  or  correct  the  award  where 
it  appears : 

1st.  That  there  was  a  miscalculation  in  figures,  upon  which  it  was 
made,  or  that  there  is  a  mistake  in  the  description  of  some  person  or 
property  therein ; 

2d.  When  a  part  of  the  award  is  upon  matters  not  submitted,  which 
part  can  be  separated  from  other  parts,  and  does  not  affect  the  decision 
on  the  matters  submitted  ; 

3d.  When  the  award,  though  imperfect  in  form,  could  have  been 
amended  if  it  had  been  a  verdict,  or  the  imperfection  disregarded. 

1.  Awards  must  be  set  aside  for  fraud,  mistake  or  accident.  An  award  may  be  en- 
forced for  tbe  good  part,  and  set  aside  for  tiio  bad. — Muldroiv  v.  Xorris,  2  Cal.,  74. 

388.  The  decision  upon  the  motion  shall  be  subject  to  appeal  in 
the  same  manner  as  an  order  which  is  subject  to  appeal  in  a  civil 
action ;  but  the  judgment  entered  before  a  motion  is  made,  shall  not 
be  subject  to  appeal. 

1.  A  stipulation  that  neither  party  will  appeal,  is  not  binding. — Muldrow  v.  Xorris, 
2  Cal.,  74.. 

389.  If  a  submission  to  arbitration  be  revoked,  and  an  action  be 
brought  therefor,  the  amount  to  be  recovered  shall  only  be  the  costs 
and  damages  sustained  in  preparing  for  and  attending  the  arbitration. 


§390  OFFER   TO    COMPROMISE.  193 


CHAPTER  V. 

OFFER   OF   THE   DEFENDANT   TO    COMPROMISE    THE   WHOLE    OR   A   PART 

OF   AN   ACTION. 

390.  The  defendant  may,  at  any  time  before  the  trial  or  judgment, 
serve  upon  the  plaintiflF  an  offer  to  allow  judgment  to  be  taken  against 
him,  for  the  sum  or  property,  or  to  the  effect  therein  specified.  If  the 
plaintiff  accept  the  offer,  and  give  notice  thereof  within  five  days,  he 
may  file  the  summons,  complaint  and  offer,  with  an  affidavit  of  notice 
of  acceptance,  and  the  clerk  shall  thereupon  enter  judgment  accord- 
ingly. If  the  notice  of  acceptance  be  not  given,  the  offer  shall  be 
deemed  withdrawn,  and  shall  not  be  given  in  evidence ;  and  if  the 
plaintiff  fail  to  obtain  a  more  favorable  judgment,  he  shall  not  recover 
costs,  but  shall  pay  the  defendant's  costs,  from  the  time  of  the  offer. 

1.  A  cognovit  is  good  as  au  admission  in  pais  after  answer  is  filed. — Ilirschjield  v. 
Franklin,  6  Cal.,  607. 

2.  The  offer  under  the  code,  is  analogous  to  the  cognovit  under  the  former  practice. 
Emery  v.  Emery,  9  How.  Pr.,  130  ;  Johnson  v.  Sugar,  10  How.  Pr.,  5.52;  Lippman  v. 
Joelson,  1  Code,  N.  S.,  note,  161. 

3.  That  the  defendant  offered  to  let  the  plaintiff  take  judgment  for  a  sura  admitted 
in  the  answer  to  be  due,  which  offer  plaintiff  declined,  is  no  reason  for  denying  plaintiff's 
motion,  that  defendant  pay  into  the  court  the  sum  admitted  to  be  due. — Dusenberry  v. 
Woodward,  I  Abbott,  443. 

4.  A  defendant  against  whom  a  judgment  is  obtained  for  a  less  amount  than  he  offer- 
ed in  writing  to  allow  judgment  to  be  taken  against  him,  is  entitled  to  costs  against  the 
plaintiff"  from  the  time  of  the  offer. — M'Lees  v.  Avery,  4  How.  Pr.,  441. 

5.  A  plaintiff  has  in  all  cases  five  days  to  elect  whether  he  will  accept  or  proceed  to 
trial.  If  notice  is  served  so  that  the  cause  is  reached  and  tried  before  the  expiration  of 
the  five  days,  the  rights  of  the  parties  are  in  all  respects  as  if  no  offer  had  been  made. — 
Pomeroy  v.  Iltilin,  7  ib.,  161. 

6.  Where  tiie  plaintiff  failed  to  obtain  a  more  favorable  judgment  in  amount  than 
was  offered  by  defendant,  but  on  the  trial  extinguished  a  set-off  of  the  defendant,  which 
with  the  verdict  exceeded  the  defendant's  offer,  the  plaintiff  was  entitled  to  full  costs. — 
Rufjijles  V.  For/(/,  ib.,  324. 

7.  The  offer  amounts  to  a  written  stipulation  on  the  part  of  the  defendant ;  and 
precludes  him  from  taking  any  steps  in  the  cause  until  the  five  days  expire,  or  tlie  writ- 
ten notice  of  accei)tance  be  served. —  Walker  v.  Johnson,  8  ib.,  240. 

8.  The  offer  will  not  be  avoided  by  serving  an  amended  answer. — Kilts  v.  Seeber, 
10  ib.,  270. 

9.  There  should  be  no  doubtful  language  or  misunderstanding  about  the  offer. — 
Post  v.  New   York  Central  li.  R.  Co.,  12  ib.,  552. 


194  WITNESSES.  §391 


TITLE*  XI.     JTT 


or    "WITNESSES,   AND    OF   THE   MANNER   OF   OBTAINING   EVIDENCE. 

CHAPTER  I. 

OF     WITNESSES. 

391.  All  persons,  -^-itliout  exception,  otherwise  than  as  specified  in 
in  this  chapter,  may  be  witnesses  in  any  action  or  proceeding. 

1.  The  court  should  decide  upon  tlie  admissibility  of  a  witness,  and  not  refer  the 
question  to  the  jury. — Tahor  v.  Slankh,  2  Cal.,  240. 

2.  A  book-keeper,  as  a  witness,  has  a  right  to  refer  to  the  books  kept  by  him,  to  re- 
fresh his  memory. — Treadwelly.  Wells,  4  Cal.,  260. 

3.  Where  evidence  offered  to  be  given  as  a  defense  to  the  action  is  excluded  by  the 
court  on  the  ground  that  it  is  not  warranted  by  the  pleadings,  the  party  should  offer  it 
again  in  mitigation  of  damages,  if  he  wishes  to  avail  himself  of  it  for  that  purpose. — 
Travis  v.  Bcm/er,  26  Barb.,  615. 

392.  [1851.]  No  person  offered  as  a  witness  shall  be  excluded  on 
account  of  his  opinions  on  matters  of  religious  beUef ;  nor  shall  any 
person  be  excluded  on  account  of  his  interest  in  the  event  of  the  action 
or  proceedings,  except  in  the  following  cases : 

1st.  When  he  is  a  party  to  the  action  or  proceeding,  or  the  action 
or  proceeding  is  prosecuted  or  defended  for  his  immediate  benefit. 
2d.  When  his  interest  is  a  present,  certain,  and  vested  interest. 

1.  Wiierc  a  witness  is  examined  on  his  voir  dire,  as  to  his  interest,  the  party  offer- 
ing him,  may  cross-examine  him. — Beach  v.  Covillaitd,  2  Cal.,  237. 

2.  Sections  392  and  393  exclude  all  testimony,  when  the  witness  would  be  benefit- 
ed by  It.— Joiu's  v.  Post,  4  Cal.,  14  ;    Gntf^n  v.  Alsop,  lb.,  406. 

3.  Tlie  indorser  of  a  note  is  not  a  party  ;  he  may  be  a  witness. — Tomliiisoii  v.  Spen- 
ser, 5  CaI.,  291. 

4.  An  agent  may  be  a  witness  as  to  his  authority. — lb. 

5.  A  witness  may  be  examined  as  to  whether  he  belongs  to  a  secret  society,  with  a 
view  to  show  tliat  the  princi])les  and  objects  of  such  society  are  such  that  his  testimony 
is  liable  to  suspicion  of  unfairness. — Pioplc  v.  lieijts,  5  Cal.,  347  ;  People  v.  Christie,  2 
Abbott,  256. 

6.  A  party  has  no  right  to  cross-examine  a  witness  except  as  to  facts  and  circum- 


§393  WITNESSES.  195 

stances  connected  witli  the  matter  stated  in  his   direct  examination. — La)ul.sberrier  v. 
Gorham,  5  Cal.,  450. 

7.  In  a  suit  by  a  claimant  of  attached  property  against  the  sheriff,  the  testimony  of 
a  sul)se(iucnt  attaeiiing  creditor  who  has  executed  an  indemnifying  bond  to  the  sheriff' 
to  liohl  him  harml^'s  in  Iiolding  the  property,  is  not  admissible. — lb. ;  lloicland  v. 
Willetts,  5  Seld.,  170.  ■^* 

8.  A  broker  cannot  be  a  witness  if  his  commisson  depends  on  tlie  result. — Shaw  v. 
Davis,  •■)  Cal.,  466. 

9.  In  an  action  against  a  corporation,  a  witness  wlio  was  a  member  of  the  corpora- 
tion when  the  liabilities  were  incurred  on  which  the  action  was  brought,  is  incompetent. 
McAulfij  V.  York  Mining  Co.,  6  Cal.,  80. 

10.  A  witness  is  competent  if  his  wages  did  not  depend  upon  the  fact  whether  gold 
was  taken  out  of  the  particular  locality  in  dispute. — Live  Yankee  Co.  v.  Oregon  Co.,  7 
Cal.,  Jan.  T. 

11.  Where  the  clerk  of  the  court  is  called  as  a  witness  to  prove  the  records  of  the 
court  of  which  he  is  a  clerk,  it  is  no  objection  that  he  is  interested  in  the  result  of  the 
suit. — Price  v.  Dunlap,  5  Cal.,  483. 

12.  A  maker  of  a  note  cannot  be  a  witness  to  charge  his  endorser.  His  interest  is 
not  equally  balanced. — Palmer  v.  Tripp,  6  Cal.,  82. 

13.  A  defendant,  though  not  served,  if  a  party  to  the  record,  cannot  be  called  as  a 
witness  under  the  first  subdivision  above,  if  the  evidence  connects  him  with  the  trespass. 
Gates  V.  Nash,  6  Cal.,  192. 

14.  The  maker  of  a  note  after  judgment  against  him,  is  a  competent  witness  for  the 
endorser,  because  his  interest  is  equally  balanced. —  Vance  v.  Collins,  6  Cal.,  435. 

15.  A  witness  responsible  to  the  plaintiff"  as  endorser  of  the  note,  had  a  direct  inter- 
est in  establishing  a  lien  upon  the  property  of  the  defendants,  and  was  therefore  an  in- 
competent witness  for  that  purpose. — Soule  v.  Dawes,  6  Cal.,  473. 

16.  The  first  subdivision  of  the  section  is  not  controlled  by  the  first  part  and  the 
succeeding  section. — Lucas  v.  Payne,  7  Cal.,  Jan.  T. 

17.  The  interest  must  be  a  legal  and  not  a  moral  interest. — Jones  v.  Love,  8  Cal., 
Jan.  T. 

18.  A  co-defendant,  although  material  as  a  witness,  cannot  be  examined  until  his 
case  is  passed  upon,  if  he  is  improperly  joined  as  a  co-defendant. — Lucas  v.  Payne,  7 
Cal.,  Jan.  T. ;  Domingee  v.  Getman,  8  ib.,  Jan.  T. 

19.  A  party  has  a  right  to  the  preliminary  oath,  called  the  voir  dire,  administered  to 
a  witness  against  him,  and  to  examine  him  touching  his  competency  before  he  is  sworn 
in  chief. — Seeley  v.  Engell,  3  Kern.,  542. 

393.  [1854.]  The  true  test  of  the  interest  of  a  person,  which  shall 
render  him  incompetent  as  a  witness,  shall  be  that  he  will  gain  or  lose 
bj  the  direct  legal  operation  and' effect  of  the  judgment,  or  that  the 
record  of  the  judgment  will  be  legal  evidence  for  or  against  him,  in 
some  other  action  ;  but  nothing  in  this,  or  in  the  last  section,  shall  pre- 
vent a  party  calling  as  a  witness  the  adverse  party  to  the  action,  or  a 


196  WITNESSES.  §394 

person  whose  interest  is  adverse,  nor  a  party  being  a  witness  in  the 
cases  mentioned  in  section  four  hundred  and  twenty-three. 

1.  A  driver  is  not  a  competent  witness  for  his  employer,  in  an  action  for  negligently 
driving  against  one,  without  previously  being  released  by  his  employer. — Finn  v.  Vallejo 

Wharf  Co.,  7  Cal.,  Jan.  T. 

2.  One  wiio  has  indemnified  the  sheriff  for  taking  property  by  virtue  of  an  execu- 
tion, is  not  a  competent  witness  for  the  sheriff  in  defense  to  a  snit  against  him. — How- 
land  V.  Willnts,  5  Sclden,  170. 

394.  [1854.]  The  folloAving  persons  shall  not  be  witnesses  : 

1st.  Those  who  are  of  unsound  mind  at  the  time  of  their  production 
for  examination  ; 

2d.  Children  under  ten  years  of  age,  who,  in  the  opinion  of  the 
court  appear  incapable  of  receiving  just  impressions  of  the  facts  re- 
specting which  they  are  examined,  or  of  relating  them  truly  ; 

3d.  Indians,  or  persons  having  one-half  or  more  of  Indian  blood,  and 
negi'oes,  or  persons  having  one-half  or  more  of  negro  blood,  in  an  ac- 
tion or  proceeding  to  which  a  white  person  is  a  party  ; 

4th.  Persons  against  whom  judgment  has  been  rendered  upon  a 
conviction  for  a  felony,  unless  pardoned  by  the  Governor,  or  such  judg- 
ment has  been  reversed  on  appeal. 

1.     3d.  Held  to  apply  to  Chinese.— Pfo;*Ze  v.  Hall,  4  Cal.,  .399. 

395.  A  husband  shall  not  be  a  witness  for  or  against  his  wife,  nor 
a  wife  a  witness  for  or  against  her  husband  ;  nor  can  either,  during  the 
marriage,  or  afterwards,  be,  without  the  consent  of  the  other,  exam- 
ined as  to  any  communication  made  by  one  to  the  other  during  the 
marriage.  But  this  exception  shall  not  apply  to  an  action  or  proceed- 
ing by  one  against  the  other. 

396.  An  attorney  or  counselor,  shall  not,  Avithout  the  consent  of 
his  client,  be  examined  as  a  witness  as  [to]  any  communication  made  by 
the  client  to  him,  or  his  advice  given  thereon,  in  the  course  of  profes- 
sional employment. 

1.     Ldndsbtnjcr  Y.  Gorliam,  5  Cal.,  450. 

397.  A  clergyman  or  priest  shall  not,  without  the  consent  of  the 
person  making  the  confession,  be  examined  as  a  witness  as  to  any  con- 
fession made  to  him  in  his  professional  character,  in  the  course  of  dis- 
cipline enjoined  by  the  church  to  which  he  belongs. 


§403  ATTENDANCE    OP    AVITNESSES.  197 

398.  A  licensed  physician  or  surgeon  shall  not,  Avithout  the  con- 
sent of  his  patient,  be  examined  as  a  witness,  as  to  any  information 
acquired  in  attending  the  patient,  which  was  necessary  to  enable  him 
to  prescribe  or  act  for  the  patient.     Lyt-r^-v^U<^C  ,  -fl<^<.  <^^^  ^ 

399.  A  public  officer  shall  not  be  examined  as  a  witness  as  to  com- 
munications made  to  him  in  official  confidence,  when  the  public  interest 
would  suffer  by  the  disclosure. 

400.  The  judge  himself  or  any  juror,  may  be  called  as  a  witness 
by  either  party  ;  but  in  such  case  it  shall  be  in  the  discretion  of  the 
court  or  judge  to  order  the  trial  to  be  postponed  or  suspended,  and  to 
take  place  before  another  judge  or  jury. 

401.  When  a  witness  does  not  understand  and  speak  the  English 
language,  an  interpreter  shall  be  sworn  to  interpret  for  him. 


CHAPTER  II. 

MANNER  OF  COMPELLING  THE  ATTENDANCE   OF  AVITNESSES,  AND  THEIR 
RIGHTS   AND   DUTIES. 

402.  [1855.]  A  subpoena  may  require,  not  only  the  attendance  of 
the  person  to  whom  it  is  directed  at  a  partic\iJar  time  and  place,  to 
testify  as  a  Avitness,  but  may  also  require  him  to  bring  any  books, 
documents,  or  other  things  under  his  control,  to  be  used  as  evidence. 
No  person  shall  be  required  to  attend  as  a  Avitness  before  any  court, 
judge,  justice,  or  any  other  officer  out  of  the  county  in  Avhich  he  re- 
sides, unless  the  distance  be  less  than  thirty  miles  from  his  place  of 
residence  to  the  place  of  trial. 

403.  The  subpoem^  shall  be  issued  as  foUoAA's:  i  ^-^ 
1st.  To  require  attendance  before  a  court,  or  at  the  trial  of  an  issue 

therein,  it  shall  be  issbedanthe  name  and  under  the  seal  of  the  court 

before  which  the  attendancei§">i:^|uired,  or  in  which  the  issue  is       \  ,  ] 

pending ; 

2d.  To  require  attendance  out  of  couVt  before  a  judge,  justice,  or 
other  officer  authorised  to  administer  oaths,  or  take  testimony  in  any 


/^ 


5 


iiOZ 


198  ATTENDANCE   OF   WITNESSES.  §40-1 

matter,  under  the  laws  of  this  state  ;  it  shall  be  issued  by  the  judge, 
justice,  or  any  other  officer  before  whom  the  attendance  is  required  ; 

3d.  To  require  attendance  before  a  commissioner  appointed  to  take 
testimony  by  a  court  of  any  other  state  or  county,  it  may  be  issued  by 
any  judge  or  justice  of  the  peace,  in  places  within  their  respective 
jurisdictions. 

404.  The  service  of  a  subpcena  shall  be  made  by  showing  the  orig- 
inal, and  delivering  a  copy,  or  a  ticket  containing  its  substance,  to  the 
witness  personally,  giving  or  offisring  to  him  at  the  same  time,  if  de- 
manded by  him,  the  fees  to  which  he  is  entitled  for  travel  to  and  from 
the  place  designated,  and  one  day's  attendance  there.  Such  service 
may  be  made  by  any  person. 

405.  If  a  witness  be  concealed  in  a  building  or  vessel  so  as  to  pre- 
vent the  service  of  a  sul)poena  upon  him,  any  court  or  judge,  or  any 
officer  issuing  the  subpoena,  may,  upon  proof  by  affidavit  of  the  con- 
cealment and  of  the  materiality  of  the  witness,  make  ftn  order  that  the 
sheriff  of  the  county  serve  the  subpoena  ;  and  the  sheriff  shall  serve  it 
accordingly,  and  for  that  purnose  may  break  into  the  building  or  ves- 
sel where  the  witness  is  concealect:    \  '     ^ '    C 

400.  A  person  present  in  court,  or  before  a  judicial  officer,  may 
be  re(|uired  to  testify,  in  the  same  manner  as  if  he  were  in  attendance 
upon  a  subpoena  issued  by  such  court  or  officer. 

407.  It  shall  be  the  duty  of  a  witness,  duly  served  with  a  sub- 
poena, to  attend  at  the  time  appointed,  with  any  papers  under  his  con- 
trol required  by  the  subpoena,  to  answer  all  pertinent  and  legal  ques- 
tions ;  and,  unless  sooner  discharged,  to  remain  till  the  testimony  is 
closed. 

1.  A  witness  cnnnot  be  cross-examined  except  in  reference  to  matters  concerning 
which  he  has  been  examined  in  chief. — Thornhurgh  v.  Hand,  7  Cal.,  Jan.  T. 

2.  T!ie  admission  of  leading  questions,  in  the  examination  of  a  witness,  is  always 
in  the  discretion  of  the  court,  subject  however  to  be  reviewed,  and  will  not  be  regarded 
as  error  unless  the  discretion  has  been  abused. — Dudlomj  v.  Van  Nosiraiid,  24  Barii.,  25. 

408.  A  witness  shall  answer  (questions  legal  and  pertinent  to  the 
matter  in  issue,  though  his  answer  may  establish  a  claim  against  him- 


§413  ATTENDANCE   OF   WITNESSES.  199 

self ;  but  he  need  not  give  an  answer  which  shall  have  a  tendency  to 
subject  him  to  punishment  for  a  felony  ;  nor  need  he  give  an  answer 
Avhich  shall  have  a  direct  tendency  to  degrade  his  character,  unless  it 
be  to  the  very  fact  in  issue,  or  to  a  fact  from  which  the  fact  in  issue 
would  be  presumed.  But  a  witness  shall  answer  as  to  the  fact  of  his 
previous  conviction  for  felony. 

1.  The  opinions  of  a  person,  not  an  expert,  arc  not  evidence. — Ecijnohh  v.  Jourdan, 
6  Cal.,  108. 

2.  Hearsay  testimony  to  a  fact  admitted  by  both  parties,  may  be  given. —  Williams 
V.  ChaJhournc,  6  Cal.,  559. 

409.  Disobedience  to  a  subpoena,  or  a  refusal  to  be  sworn,  or  to 
answer  as  a  witness,  or  to  subscribe  an  affidavit  or  deposition  when 
required,  may  be  punished  as  a  contempt  by  the  court  or  officer  issuing 
the  subpoena,  or  requiring  the  witness  to  be  sworn  ;  and  if  the  witness 
be  a  party,  his  complaint  may  be  dismissed  or  his  answer  stricken  out. 

410.  A  witness  disobeying  a  subpoena  shall  also  forfeit  to  the  party 
aggrieved  the  sum  of  one  hundred  dollars,  and  all  damages  which  he 
may  sustain  by  the  failure  of  the  witness  to  attend ;  which  forfeiture 
and  damages  may  be  recovered  i^  afcivfl.  acti'on. 

411.  In  case  of  failure  of  a  witness  to  attend,  the  court  or  officer 
issumg  the  subpoena,  upon  proof  of  the  service  thereof,  and  of  the  fail- 
ure of  the  witness,  may  issue  a  warrant  to  the  sheriff  of  the  county  to 
arrest  the  witness  and  bring  him  before  the  court  or  officer  where  his 
attendance  was  required. 

412.  If  the  witness  be  a  prisoner,  confined  in  a  jail  or  prison  with- 
in this  state  for  any  other  cause  than  a  sentence  for  felony,  an  order 
for  his  examination  in  the  prison  upon  deposition,  or  for  his  temporary 
removal  and  production  before  a  court  or  officer  for  the  purpose  of  be- 
ing orally  examined,  may  be  made  as  follows  : 

J  St.  By  the  court  itself,  in  which  the  action  or  special  proceeding 
is  pending  ; 

2d.  By  a  judge  of  the  supreme  court,  district  court,  or  county  judge 
of  the  county  where  the  action  or  proceeding  is  pending,  if  before  a 
judge  or  other  person  out  of  court. 

413.  Such  order  can  only  be  made  upon  affidavit,  showing  the  na- 


200  ATTENDANCE   OF   AVITNESSES.  §414 

ture  of  the  action  or  proceeding,  the  testimony  expected  from  the  -wit- 
ness, and  its  materiaUtj. 

414.  If  the  witness  be  imprisoned  in  the  county  where  the  action 
or  proceeding  is  pending,  and  for  a  cause  other  than  a  sentence  for  fel- 
ony, his  production  may  be  required.  In  all  other  cases,  his  examina- 
tion, when  allowed,  shall  be  taken  upon  deposition. 

415.  Every  person  who  has  been  in  good  faith,  served  with  a 
subpoena  to  attend  as  a  witness  before  a  court,  judge,  commissioner, 
referee,  or  other  person,  in  a  case  where  the  disobedience  of  the  wit- 
ness may  be  punished  as  a  contempt,  shall  be  exonerated  from  arrest, 
in  a  civil  action,  while  going  to  the  place  of  attendance,  necessarily 
remaining  there,  and  returning  therefrom. 

1.  This  section  docs  not  exempt  him  from  obeying  any  ordinary  process  of  a  court, 
e.  g.,  to  attend  and  answer  concerning  his  property,  under  a  supplementary  writ. — Piuje 
V.  Randall,  6  Cal.,  32. 

416.  The  arrest  of  a  witness  contrary  to  the  last  section,  shall  be 
void  ;  but  an  officer  shall  not  be  liable  to  the  party  for  making  the 
arrest  in  ignorance  of  the  facts  creating  the  exoneration,  but  shall  be 
liable  for  any  subsequent  detention  of  the  party,  if  such  party  claim 
the  exemption  and  make  an  affidavit,  stating : 

1st.  That  he  has  been  served  with  a  subpoena  to  attend  as  a  witness 
before  a  court,  officer,  or  other  person  ;  specifying  the  same,  the  place 
of  attendance,  and  the  action  or  proceeding  in  which  the  subpoena  was 
issued;  and, 

2d.  That  he  has  not  been  thus  served  by  his  own  procurement,  with 
the  intention  of  avoiding  an  arrest ; 

3d.  That  he  is  at  the  time  going  to  the  place  of  attendance,  or  re- 
turning therefrom,  or  remaining  there  in  obedience  to  the  subpoena. 
The  affidavit  may  be  taken  by  the  officer,  and  shall  exonerate  him 
from  Uability  for  discharging  the  witness  when  arrested. 


§418  EXAMINATION   OF   PARTIES   TO   AN   ACTION.  201 


CHAPTER  III. 

OF  THE  EXAMINATION  OF  PAKTIES  TO  AN  ACTION  OR  PROCEEDING, 

AND  OF  PERSONS  FOR  WHOSE  IMMEDIATE  BENEFIT  SUCH 

ACTION  OR  PROCEEDING  IS  PROSECUTED 

OR  DEFENDED. 

417.  No  action  to  obtain  a  discovery  under  oath,  in  aid  of  the  pro- 
secution or  defense  of  another  action  or  proceeding,  shall  be  allowed, 
nor  shall  any  examination  of  a  party  be  had  on  behalf  of  the  adverse 
party,  except  in  the  manner  prescribed  by  this  chapter. 

1.  This  section  does  not  apply  to  prevent  an  examination  of  a  debtor  in  a  proceed- 
ing supplementary  to  an  execution. — Dunham  v.  Aicholtson,  2  Sand.,  636  ;  Quick  v. 
Keeler,   ib.,  231. 

418.  A  party  to  an  action  or  proceeding  may  be  examined  as  a 
witness,  at  the  instance  of  the  adverse  party,  or  of  any  one  of  several 
adverse  parties ;  and  for  that  purpose  may  be  compelled,  in  the  same 
manner,  and  subject  to  the  same  rules  of  examination  as  any  other 
witness,  to  testify  at  the  trial,  and  he  may  be  examined  on  a  commis- 
sion. 

1.  A  co-defend;.nt  is  not  a  competent  witness,  where  his  testimony  would  enure  to 
his  own  benefit.  He  could  show  his  co-defendant  was  not  his  partner. — Hotalinq  \. 
Cronise,  2  Cal.,  60 ;  Beach  v.  Covillaud,  ib.,  237  ;  Sparks  v.  Kohler,  3  Cal.,  299  ;  John- 
son V.  Henderson,  ib.,  368  ;  Buckhy  v.  Manife,  ib.,  441  ;  Lucas  v.  Payne,  7  Cal.,  Jan.  T. 

2.  "When  not  served  with  process  in  an  action  of  trespass,  he  is  still  incompetent. — 
Gates  V.  Nash,  6  Cal.,  192. 

3.  The  examination  of  a  defendant  not  sei-ved  with  process,  as  a  witness,  will  not 
authorize  the  examination  of  a  plaintifi"  as  a  witness  on  behalf  of  himself  and  his  co- 
plaintiffs. — Robinson  v.  Frost,  14  Barb.,  536. 

4.  This  does  not  authorize  the  examination  of  a  party  except  as  a  witness  at  the 
trial  of  an  issue  in  the  action,  or  upon  commission,  his  testimony  to  be  read  on  the  tri- 
al. On  a  motion,  e.  g.,  to  vacate  an  order  of  arrest,  this  order  to  examine  should  not 
be  granted. — Huelinv.  Ridner,  6  Abbott,  19. 

5.  Where  the  plaintiff  is  called  by  defendant,  his  testimony  in  a  former  suit,  directly 
contrary  to  his  present  evidence,  may  be  given  as  an  admission,  on  the  trial. — Pickard 
V.  Collins,  23  Barb.,  444. 

6.  In  an  action  for  a  tort  against  two  or  more  defendants,  each  defendant  is  a  com- 
petent witness  for  his  co-defendant. 

7.  As  to  what  matters  upon  which  he  may  give  evidence,  discussed. — Beal  v.  Finch, 
1  Kern,  128. 

N 


202  EXAMIXATIOX   OF   PARTIES   TO   AX   ACTION.  §419 

8.  Under  the  code  a  defendant  cannot  be  examined  by  a  co-defendant  to  establish 
usury  as  a  defense  to  their  joint  promissory  note. — Ely  v.  Miller,  1  Abbott,  241. 

9.  A  party  to  a  suit  who  is  made  a  witness  by  statute,  is  to  become  such  under  the 
same  requisitions  and  restrictions  as  any  other  witness. — Arnold  v.  Arnold,  13  Verm.,  370. 

10.  The  declarations  and  conduct  of  the  seller  and  buyer  are  competent  testimony 
to  show  fraudulent  intent. — Landecker  v.  Houfjhtaling,  7  Cal.,  April  T. ;  Visher  v.  TFe6- 
ster,  ib.,  July  T. 

419.  The  examination  of  a  party  thus  taken,  may  be  rebutted  by 
adverse  testimony. 

420.  If  a  party  refuse  to  attend  and  testify  at  the  trial,  or  to  give 
his  deposition  before  trial,  or  upon  a  commission  "when  required,  his 
complaint,  answer  or  reply,  may  be  stricken  out,  and  judgment  be  tak- 
en against  him  ;  and  he  may  be  also,  in  the  discretion  of  the  court, 
proceeded  against  as  in  other  cases  for  a  contempt. 

421.  A  party  examined  by  an  adverse  party,  as  in  this  chapter 
provided,  may  be  examined  on  his  own  behalf  in  respect  to  any  matter 
pertinent  to  the  issue.  But  if  he  testify  to  any  new  matter  not  respon- 
sive to  the  inquiries  put  to  him  by  the  adverse  party,  or  necessary  to 
explain  or  qualify  his  answer  thereto ;  or  discharge,  when  his  answer 
would  charge  himself,  such  adverse  party  may  offer  himself  as  a  wit- 
ness on  his  own  behalf,  in  respect  to  such  new  matter,  and  shall  be  so 
received. 

1.  The  party  so  offering  to  be  a  witness  for  himself,  must  only  explain  the  new 
matter,  and  no  more. — Dicinelle  v.  Ilenriquez,  1  Cal.,  387. 

2.  "When  a  party  testifies  that  he  executed  a  promissory  note  described,  he  charges 
himself  and  may  show  that  he  has  since  paid  the  note. — Jones  v.  Love,  8  Cal.,  Jan.  T. 

3.  Where  a  party  called,  testifies  to  independent  matter  in  his  own  behalf,  the  court 
is  not  bound  to  believe  him  and  decide  according  to  his  testimony. — Roberts  v.  Gee,  15 
Barb.,  449. 

4.  Where  a  plaintiff  calls  the  defendant  as  a  witness  to  prove  the  plaintiff's  claim, 
and  the  defendant  on  a  cross-examination  in  his  own  behalf  proves  a  coimfcr  claim  as 
set  up  in  his  answer,  the  plaintiff  may  be  examined  in  reference  to  the  evidence  given 
by  the  defendant,  on  the  subject  of  the  counter  claim. — Harpelly.  Irmn,  1  Abbott,  144. 

5.  The  defendant  was  examined  by  the  plaintiff  on  the  trial ;  after  which  being  ex- 
amined upon  his  own  behalf,  he  testified  to  a  counter  claim  that  existed  previous  to  the 
indebtedness  upon  which  the  action  was  brought,  and  the  plaintiff  was  properly  admit- 
ted to  testify  as  to  the  new  matter. — Aitonijmous,  3  Abbott,  102. 

422.  A  person  for  whose  immediate  benefit  the  action  is  prosecuted 


§427  AFFIDAVITS.  203 

or  defended,  though  not  a  party  to  the  action,  may  be  examined  as  a 
witness,  in  the  same  manner,  and  subject  to  the  same  rules  of  examina- 
tion as  if  he  were  named  as  a  party. 

423.  [1854.]  Parties  may  be  witnesses  on  their  own  behalf  when 
the  action  is  brought  for  the  settlement  of,  or  in  relation  to,  the  busi- 
ness and  accounts  of  a  copartnership  then  existing  or  which  had  pre- 
viously existed  between  them,  to  prove  vouchers  or  items  of  account 
under  one  hundred  dollars. 


CHAPTER  IV. 

ON   AFFIDAVITS. 

424.  An  affidavit  to  be  used  before  any  court,  judge,  or  officer  of 
this  state,  may  be  taken  before  any  judge,  or  clerk  of  any  court,  or 
any  justice  of  the  peace,  or  notary  pubhc  in  this  state. 

I.  Affidavits  of  the  loss  of  an  instrument,  &c.,  to  be  used  in  court,  may  be  taken  ex 
parte,  without  notice. — McCann  v.  Beach,  2  Cal.,  25. 

425.  An  affidavit  taken  in  another  state  of  the  United  States,  to 
be  used  in  this  state,  shall  be  taken  before  a  commissioner  appointed 
by  the  governor  of  this  state,  to  take  affidavits  and  depositions  in  such 
other  state,  or  before  any  judge  of  a  court  of  record  having  a  seal. 

426.  An  affidavit  taken  in  a  foreign  country  to  be  used  in  this 
state,  shall  be  taken  before  an  ambassador,  minister,  or  consul  of  the 
United  States,  or  before  any  judge  of  a  court  of  record  having  a  seal, 
in  such  foreign  country. 

427.  When  an  affidavit  is  taken  before  a  judge  of  a  court  in  an- 
other state,  or  in  a  foreign  country,  the  genuineness  of  the  signature 
of  the  judge,  the  existence  of  the  court,  and  the  fact  that  such  judge 
is  a  member  thereof,  shall  be  certified  by  the  clerk  of  the  court,  under 
the  seal  thereof. 


S//!-^ 


204  DEPOSITIONS   TAKEN    IN   THIS    STATE.  §428 

CHAPTER  V. 

OF   DEPOSITIONS   TAKEN   IN   THIS   STATE. 

428.  The  testimony  of  a  -vv-itness  in  this  state,  may  be  taken  by 
deposition  in  an  a'ction,  at  any  time  after  the  service  of  the  summons 
or  the  appearance  of  the  defendant ;  and  in  a  special  proceeding,  after 
a  question  of  fact  has  arisen  therein,  in  the  folloAving  cases  : 

1st.  "When  the  witness  is  a  party  to  the  action  or  proceeding,  or  a 
person  for  whose  immediate  benefit  the  action  or  proceeding  is  prose- 
cuted or  defended  ; 

2d.  When  the  -witness  resides  out  of  the  county  in  which  his  testi- 
mony is  to  be  used ; 

3d.  When  the  witness  is  about  to  leave  the  county  where  the  action 
is  to  be  tried,  and  will  probably  continue  absent  when  the  testimony  is 
required, 

4th.  When  the  witness,  otherwise  liable  toattend  the  trial,  is  never- 
theless too  infirm  to  attend. 

1.  Taking  testimony  by  depositions  is  in  derogation  of  the  common  law,  and  must 
not  only  be  done  before  the  proper  officer,  but  every  requirement  of  the  law  must  be 
complied  with. — McCann  v.  Beach,  2  Cal.,  25 ;  Di/e  v.  Bailey,  2  Cal.,  383  ;  Dwindle  v. 
Howland,  1  Abbott,  87. 

2.  A  motion  at  the  trial  to  suppress  the  whole  of  a  deposition,  on  the  ground  that 
some  of  the  interrogatories  and  parts  of  the  deposition  are  improper,  should  be  denied. 
If  any  part  of  the  deposition  is  competent,  the  objection  should  be  confined  to  that 
which  is  not  so. —  Gommercial  Bank  of  Pennsi/lvania  v.  L^nioii  Bank  of  New  York,  1 
Kern.,  203. 

3.  3d.  On  the  trial  it  i<iust  be  shown  that  the  witness  has  continued  absent  so  that 
his  attendance  could  not  be  compelled  by  process  of  law.— Fry  v.  Bennett,  4  Duer,  247. 

429.  Either  parW  may  have  the  deposition  taken  of  a  witness  in 
this  state,  before  anAjudge  or  clerk,  or  any  justice  of  the  peace,  or 
notary  pubUc  in  this  sWe,  on  serving  upon  the  adverse  party  previous 
notice  of  the  time  and  plal?«s>of  examination,  together  with  a  copy  of  an 
affidavit,  showing'^that  the  case"T5~t>»e.4ucntioned  in  the  last  section. 
Such  notice  shall  be  at  least  five  days,  andSiwiddition,  one  day  for 
every  twenty-five  mile^of  the  distance  of  the  placcbf  examination  from 
the  residence  of  the  pprson  to  whom  the  notice  is  given,  unless  for  a 
cause  shown,  a  judge,  l^y  order,  prescribe  a  shorter  jtmie.     When  a 


§430  DEPOSITIONS   TAKEN   IN   THIS    STATE.  205 

shorter  time  is  prescribed,  a  copy  of  the  order  shall  be  served  with  the 
notice. 

1.  An  order  to  take  testimony  by  deposition  should  specify  the  notice  to  lie  given 

to  the  adverse  party,  otherwise  it  oufrht  not  to  be  read  in  evidence. — Ellis  v.  Jaszijnsky,        ~7~~, 
5Cal.,444.*/^    C^fr^-.tc  f.^^  ^    ^^  A.<  ^    A.    r.^<^.r.^U^    ^^<  ^ 

2.  It  is  no  ground  for  the  exclusion  of  a  deposition  that  it  was  noticed  to  be  taken 
before  the  county  judge,  but  was  taken  before  the  county  clerk. —  WilUitms  v.  Chad- 
bourne,  6  Cal.,  559. 

3.  Notice  of  time  and  place  having  been  given,  it  is  a  matter  of  no  importance  who 
took  the  deposition. — lb. 

4.  A  party  appearing  at  the  time  and  place,  and  cross-examining  the  witness,  waives 
whatever  objection  may  be  had  because  the  notice  is  too  short. — Jones  v.  Imiw,  8  Cal., 
Jan.  T. 

430.  Either  party  may  attend  such  examination,  and  put  such 
questions,  direct  and  cross,  as  may  be  proper.  The  deposition,  when 
completed,  shall  be  carefully  read  to  the  witness,  and  corrected  by  him 
in  any  particular,  if  desired  ;  it  shall  then  be  subscribed  by  the  wit- 
ness, certified  by  the  judge  or  officer  taking  the  deposition,  inclosed 
in  an  envelope  or  wrapper,  sealed,  and  directed  to  the  clerk  of  the 
court  in  which  the  action  is  pending,  or  to  such  person  as  the  parties 
in  writing  may  agree  upon,  and  either  delivered  by  the  judge  or  offi- 
cer to  the  clerk  or  such  person,  or  transmitted  through  the  mail,  or  by 
some  safe  piivate  opportunity  ;  and  thereupon  such  deposition  may  be 
used  by  either  party  upon  the  trial,  or  other  proceeding,  against  any 
party  giving  or  receiving  the  notice,  subject  to  all  legal  exceptions. 
But  if  the  parties  attend  at  the  examination,  no  objection  to  the  form 
of  an  interrogatory  shall  be  made  at  the  trial,  unless  the  same  was 
stated  at  the  time  of  the  examination.  If  the  deposition  be  taken  by 
the  reason  of  the  absence  or  intended  absence  from  the  county,  of  t 
■witness,  or  because  he  is  too  infirm  to  attend,  proof  by  affidavit  or  or 
testimony  shall  be  made  at  the  trial,  that  the  witness  continues  ab- 
sent or  infirm,  to  the  best  of  the  deponent's  knowledge  or  belief.  The 
deposition  thus  taken  may  also  be  read  in  case  of  the  death  of  the 
witness. 

1.  Where  a  deposition  is  taken  ex  parte,  though  after  notice,  and  the  witness  is 
therefore  not  subjected  to  a  cross-examination,  the  language  used  by  him  will  be  sus- 
piciously regarded,  and  only  a  very  literal  interpretation  given  to  it. — Spritirj  v.  Hill,  6 
Cal.,  17.  * 

2.  The  certificate  must  state  that  the  deposition  was  read  to  the  witness  before  sign- 
ing ;  it  must  comply  with  the  statute. —  Williams  v.  Chadbourne,  6  Cal.,  559. 


206  DEPOSITIONS  TAKEN  OUT  OF  THE  STATE.        §431 

431.  When  a  deposition  has  been  once  taken,  it  may  be  read  in 
any  stage  of  the  same  action  or  proceeding  by  either  party,  and  shall 
then  be  deemed  the  evidence  of  the  party  reading  it. 


CHAPTER  VI. 

OF  DEPOSITIONS  TAKEN  OUT  OF  THIS  STATE. 

432.  The  testimony  of  a  witness  out  of  the  state  may  be  taken  by 
deposition  in  an  action  at  any  time  after  the  service  of  tho  summons, 
or  the  appearance  of  the  defendant ;  and  in  a  special  proceeding,  at 
any  time  after  a  question  of  fact  has  arisen  therein. 

1.  Diligence  must  be  exercised  in  applying  for  a  commission. — Pierfon  v.  Uolbrooh, 
2  Cal.,  598. 

2.  The  proper  time  to  object  to  such  deposition  is  when  it  is  offered  in  evidence. — 
Mills  V.  Dunlap,  3  Cal.,  94. 

3.  It  is  also  admissible,  notwithstanding  the  witness  may  have  retui  ned  to  the  state 
since  his  examination,  if  he  is  not  within  the  state  at  the  time  of  the  ti  ial. — Markoe  v. 
Aldrich,  1  Abbott,  55. 

4.  On  the  execution  of  a  commission,  the  parties  have  a  right  to  appear  by  counsel. 
Cross  interrogatories  cannot  be  withdrawn  unless  by  mutual  consent.  A  witness  can- 
not shield  himself  from  answering  a  cross  interrogatory,  by  a  rcfcrenco  to  his  previous 
answer  to  a  direct  one. —  Union  Bank  v.  Torrei/,  2  Abbott,  269  ;  5  Ducr,  626. 

5.  This  provision  is  an  innovation  upon  the  common  law,  and  must  be  strictly  exer- 
cised.—  Creamer  V.  Jackson,  4  Abbott,  413. 

433.  The  deposition  of  a  Avitness  out  of  this  state  shall  be  taken 
upon  commission  issued  from  the  court,  under  the  seal  of  the  court, 
upon  an  order  of  the  judge,  or  court,  or  county  judge,  on  the  applica- 
tion of  either  party,  upon  five  days'  previous  notice  to  the  other.  It 
shall  be  issued  to  a  person  agreed  upon  between  the  parties,  or  if  they 
do  not  agree,  to  any  judge  or  justice  of  the  peace  selected  by  the  offi- 
cer granting  the  commission,  or  to  a  commissioner  appointed  by  the 
governor  of  this  state,  to  take  affidavits  and  depositions  in  other 
states,  (a) 

(rt)      Statutes  of  1858,  22. 

1.  The  first  section  of  an  act  entitled  "  An  act  empowering  the  governor  to  appoint 
commitisioners  of  deeds,  and  defining  the  duties  of  such  officers,"  passed  March  20th, 
1850,  is  hereby  amended  so  as  to  read  as  follows:  The  gorernor  may,  when  in  his 


^38  PROCEEDINGS   TO   PERPETUATE   TESTIMONY.  207 

434.  Such  proper  interrogatories,  direct  and  cross,  as  the  respec- 
tive parties  may  prepare,  to  be  settled,  if  the  parties  disagree  as  to 
their  form,  by  the  judge  or  officer  granting  the  order  for  the  commis- 
sion, at  a  day  fixed  in  the  order,  may  be  annexed  to  the  commission  ; 
or,  when  the  parties  agree  to  that  mode,  the  examination  may  be  with- 
out written  interrogatories. 

435.  The  commission  shall  authorize  the  commissioner  to  adminis- 
ter an  oath  to  the  witness,  and  to  take  his  deposition  in  answer  to  the 
interrogatories,  or,  when  the  examination  is  to  be  without  interrogato- 
ries, in  respect  to  the  question  in  dispute  ;  and  to  certify  the  deposition 
to  the  court,  in  a  scaled  envelope  directed  to  the  clerk,  or  other  person 
designated  or  agreed  upon,  and  forwarded  to  him  by  mail,  or  other 
usual  channel  of  conveyance. 

1 .  An  appeal  does  not  lie  from  an  order  refusing  to  grant  a  commission  to  take  tes- 
timony.— People  V.  Stillman,  7  Cal.,  Jan.  T. 

2.  The  commission  is  defective  if  there  is  not  a  seal  attached. —  Whitney  v.  Wyncoop 
4  Abbott,  370. 

436.  A  trial,  or  other  proceeding,  shall  not  be  postponed  by  reason 
of  a  commission  not  returned,  except  upon  evidence  satisfactory  to  the 
court,  that  the  testimony  of  the  witness  is  necessary,  and  that  proper 
diligence  has  been  used  to  obtain  it. 


CHAPTER  VII. 

OF  PROCEEDINGS  TO  PERPETUATE  TESTIMONY. 

437.  The  testimony  of  a  witness  may  be  taken  and  perpetuated  as      /  &6''j 
provided  in  this  chapter.  <.^ 

438.  The  appUcant  shall  produce  to  a  district  judge,  or  to  a  coun-         ^^  ^' 


ty  judge,  an  affidavit  stating : 


judgment  it  may  be  necessary,  appoint   in   each  of  the  United  States,  and  in  each  of 
the  territories  and  districts  of  the  United  States,  and  in  each  foreign  state,  territory,  and      rt- 
colony,  one  or  more  commissioners,  to  continue  in  office  four  years,  unless  removed  by     "^  H  S  p 
the  governor.     Every  such  commissioner  shall  have  power  to  administer  oaths,  and  to  ^i  5- 

taJce  depositions  and  affidavits,  to  be  used  in  this  state;  and  also  to  take  the  acknowledg- 
ment or  proof  of  any  deed  or  other  instrument  to  be  recorded  in  this  state. 


208 


PROCEEDINGS  TO  PERPETUATE  TESTIMONY. 


§439 


I  k^ 


(1st.  That  the  applicant  expects  to  be  a  partjto  an  action  in  a  court 
in  this  state  ; 
2d.  That  the  testimony  of  a  witness  residing  in  this  state,  whose  place 
of  residence  is  stated,  is  necessary  to  the  prosecution  or  defense  of 
such  action  ;  and  generally  the  facts  expected  to  be  proved  ; 
3d.  That  the  party  named,  who  is  expected  to  be  adverse  to  the 
applicant,  resides  or  is  at  the  time  in  this  state.  The  judge  may, 
thereupon,  in  his  discretion,  make  an  order  allowing  the  examination, 
and  prescribing  how  long  before  the  examination  the  order  and  notice 
of  the  time  and  place  thereof  shall  be  served. 

1.  It  must  be  made  to  appear  to  the  juclfxe  that  the  ohject  is  in  good  faith,  to  per- 
petuate testimony. — Puton  v.  Wtstervelt,  5  How.  Pr.,  399. 

439.  Upon  proof  of  personal  service  upon  the  person  who  is  ex- 
pected to  be  the  adverse  party,  of  the  order,  copy  of  the  affidant,  and 
of  a  notice  that  the  examination  will  be  taken  before  a  district  judge, 
or  county  judge  of  the  county  wherein  the  witness  resides,  or  may  be  at 
a  specified  time  and  place,  such  judge  may  take  a  deposition  of  the 
witness,  and  the  examination  may,  if  necessary,  be  adjourned  from  time 
to  time. 


440.  The  examination  shall  be  by  question  and  answer,  unless  the 
parties  otherwise  agree.  The  deposition,  when  completed,  shall  be 
carefully  read  to  and  subscribed  by  the  witness,  then  certified  by  the 
judge,  and  immediately  thereafter  filed  in  the  office  of  the  clerk  of  the 
county  where  it  was  taken,  together  with  the  order  for  the  examination 
of  the  witness,  the  affidavit  on  which  the  same  was  granted,  and  the 
affidavit  of  service  of  the  affidavit,  order,  or  notice. 

441.  The  affidavits  filed  ^vith  the  deposition,  or  a  certified  copy 
thereof,  shall  be  primary  evidence  of  the  facts  stated  therein,  to  show 
compliance  with  the  provisions  of  this  chapter. 

442.  If  a  trial  be  had  between  the  persons  named  in  the  affidavit 
as  parties  expectant,  or  their  successors  in  interest,  upon  proof  of  the 
death  or  insanity  of  the  Avitness,  or  of  his  inability  to  attend  the  trial 
by  reason  of  age,  sickness,  or  settled  infirmity,  the  deposition,  or  a  cer- 
tified copy  thereof,  may  be  used  by  cither  party,  subject  to  all  legal 
objections.     But  if  the  parties  attend  at  the  cxamhiation,  no  objection 


§445  OATHS  AND  AFFIRMATIONS.  209 

to  the  form  of  an  interrogatory  shall  be  made  at  the  trial,  unless  the     '__2^ 
same  was  stated  at  the  time  of  the  examination. 


CHAPTER  VIII. 

ADMINISTRATION   OF   OATHS   AND   AFFIRMATIONS. 

443.  Every  court  of  this  state,  every  judge  or  clerk  of  any  court, 
every  justice  of  the  peace,  and  every  notary  public,  and  every  officer 
authorised  to  take  testimony,  or  to  decide  upon  evidence  in  any  pro- 
ceeding, shall  have  power  to  administer  oaths  or  affirmations,  {a) 

444.  When  a  person  is  sworn  who  believes  in  any  other  than  the 
christian  rehgion,  he  may  be  sworn  according  to  the  peculiar  ceremo- 
nies of  his  religion,  if  there  be  any  such. 

445.  Any  witness  who  desires  it  may,  at  his  option,  instead  of  tak- 
ing an  oath,  make  his  solemn  affirmation  or  declaration,  by  assenting, 
when  addressed,  in  the  following  form :  "  You  do  solemnly  affirm  that 
the  evidence  you  shall  give  in  this  issue,  (or  matter,)  pending  between 

and ,  shall  be  the  truth,  the  whole  truth,  and  nothing 

but  the  truth."  Assent  to  this  affirmation  shall  be  made  by  the  an- 
swer, "  I  do."  A  false  affirmation  or  declaration  shall  be  deemed  per- 
jury, equally  with  a  false  oath. 

{a)     Statutes  of  1852,  106. 
An  act  concerning  the  administration  of  oaths,  passed  May  1,  1852. 

1.  That  all  officers  of  this  state,  authorised  by  law  to  administer  oaths  or  affirma- 
tions, may  certify  the  same  under  their  hands,  without  affixing  to  such  certificate  their 
seals  of  office. 

2.  That  all  oaths  or  affirmations  heretofore  administered  by  any  officer  of  this  state, 
and  by  him  certified  under  his  hand,  without  his  seal  of  office,  shall  be  as  effectual  for 
all  purposes  as  if  such  seal  had  been  affixed  to  such  certificate. 


210  INSPECTION   OF   DOCUMENTS.  §446 


CHAPTER  IX. 

INSPECTION   OF  DOCUMENTS,   AND   MISCELLANEOUS   PROVISIONS   AS   TO 
RECORDS   AND   WRITINGS. 

446.  Any  court  in -which  an  action  is  pending,  or  a  judge  thereof, 
or  a  county  judge,  may,  upon  notice,  order  either  party  to  give  to  the 
other,  within  a  specified  time,  an  inspection  and  copy,  or  permission 
to  take  a  copy,  of  any  book,  document,  or  paper,  in  his  possession,  or 
under  his  control,  containing  evidence  relating  to  the  merits  of  the 
action,  or  the  defense  therein.  If  compliance  with  the  order  be  refus- 
ed, the  court  may  exclude  the  book,  document,  or  paper,  from  being 
given  in  evidence ;  or  if  wanted  as  evidence  by  the  party  applyuig, 
may  direct  the  jury  to  presume  it  to  be  such  as  he  alleges  it  to  be : 
and  the  court  may  also  punish  the  party  refusing  for  a  contempt.  This 
section  shall  not  be  construed  to  prevent  a  party  from  compelling  an- 
other to  produce  books,  papers,  or  documents,  when  he  is  examined  as 
a  witness. 

1.  The  court  is  authorized  to  make  an  order  directing  a  party  to  produce  books  and 
papers  in  court. — Barnstead  v.  Empire  Mining  Co.,  5  Cal.,  299. 

2.  The  court  has  the  power,  in  any  case  where  either  ])arty  has  in  his  possession  or 
power  papers,  books,  or  documents  containing  evidence  bearing  upon  the  merits  of  the 
action,  to  compel  sucli  party  to  exhibit  the  same  to  the  adverse  party,  if  deemed  prop- 
er.— Powers  V.  Ebnendorf,  4  How.  Pr.,  60. 

3.  An  order  for  discovery  may  be  enforced  before  issue  joined  in  the  cause. — Miller 
V.  Mather,  5  ib.,  160. 

4.  An  application  for  discovery  or  inspection  must  be  made  upon  petition. — Dole  v. 
Fellows,  ib.,  451. 

5.  Where  the  president,  or  other  officer  of  a  corporation,  has  no  such  property  in, 
or  control  over,  the  books  of  the  corporation,  as  gives  him  the  right,  or  makes  it  his 
duty,  to  produce  them  under  a  duces  tecum,  the  proper  remedy  of  the  opposite  party  is 
to  obtain  sworn  copies,  or  an  inspection  and  review. — LaFargey.  La  FargelnS.  Co.,  14 
ib.,  26. 

6.  ■\Vlicrc,  ujion  a  motion  to  vacate  an  order  for  discovery,  made  under  this  section, 
the  party  denies  positively,  under  oath,  tiie  jiosscssion  of  the  books,  &o.,  ordered  to  be 
produced,  the  order  must  bo  vacated. — Ahoj/kc  v.  Wolcott,  4  Abbott,  41  ;  Bradstreet  v. 
Bailey,  ib.,  233. 

447.  There  shall  be  no  evidence  of  the  contents  of  a  writing,  other 
than  the  writing  itself,  except  in  the  following  cases : 


§447  INSPECTION   OF  DOCUMENTS.  211 

1st.  When  the  origmal  has  been  lost  or  destroyed ;  in  which  case 
proof  of  the  loss  or  destruction  shall  first  be  made  ; 

2d.  "When  the  original  is  in  possession  of  the  party  against  whom 
the  evidence  is  offered,  and  he  fails  to  produce  it,  after  reasonable 
notice ; 

3d.  When  the  original  is  the  record,  or  other  document,  in  the  cus- 
tody of  a  public  officer  ; 

4th.  When  the  original  has  been  recorded,  and  a  certified  copy  of 
the  records  is  made  evidence  by  statute  ; 

5th.  When  the  original  consists  of  numerous  accounts  or  other  doc- 
uments, which  cannot  be  examined  in  court  without  great  loss  of  time, 
and  the  evidence  sought  from  them  is  only  the  general  result  of  the 
whole. 

1 .  The  best  evidence  the  nature  of  the  case  is  susceptible  of  must  be  adduced. — 
McCann  v.  Beach,  2  Cal.,  25  ;  Macy  v.  Goodwin,  6  Cal.,  579. 

2.  Proof  of  the  loss  of  an  instrument  may  be  made  by  a  party's  own  affidavit,  to  lay 
the  foundation  for  proving  its  contents.  But  the  affidavit  of  a  third  person,  that  a  trunk 
of  the  party,  containing  his  papers,  is  lost,  is  insufficient,  without  showing  that  it  con- 
tained the  papers  in  question.     But  this  the  party  may  show  by  his  own  oath. — lb. 

3.  In  the  case  of  lost  instruments,  where  no  copy  has  been  preserved,  it  is  not  to  be 
expected  that  witnesses  can  recite  their  contents,  word  for  word. — Posten  v.  Rassette,  5 
Cal.,  467. 

4.  Mere  evidence  of  search  is  not  sufficient,  for  the  search  may  not  have  been  dili- 
gent.— Fohom's  ex'rs  v.  Scott,  6  Cal.,  460. 

5.  Proof  of  loss  of  receipts,  without  proof  of  their  genuineness,  is  not  a  sufficient  pre- 
dicate for  the  admission  of  evidence  as  to  their  contents. — Reynolds  v.  Jourdan,  6  Cal., 
108. 

6.  One  of  the  plaintiffs  can  be  introduced  as  a  witness  to  prove  the  loss  and  de- 
struction of  certain  mining  rules  and  regulations,  as  a  predicate  to  the  introduction  of 
secondary  evidence,  to  prove  their  contents. —  Grass  Valley  Quartz  Co.  v.  Stackhouse,  6 
Cal.,  413. 

7.  Where  an  original  instrument,  proved  to  be  lost,  has  been  recorded,  it  is  error 
to  admit  parol  evidence  of  its  contents,  unless  the  failure  to  produce  the  record  is  ac- 
counted for. — Brotherton  v.  Hart,  6  Cal.,  488. 

8.  The  judgment  book,  containing  the  record  of  the  judgment  in  the  former  suit, 
was  destroyed.  It  would  be  improper,  even  admitting  it  could  be  done,  to  have  admit- 
ted parol  evidence  of  the  pleadings  and  issues  between  the  parties,  unless  the  appellant 
had  also  been  prepared  to  introduce  a  certified  copy  of  the  judgment. —  Wines  v.  Johnson, 
7  Cal.,  Jan.  T. 

9.  The  cause  or  motive  for  the  destruction  of  the  instrument,  when  voluntarily  made, 
must  determine  the  admissibility  of  secondary  evidence. — Bagley  v.  Eaton,  8  Cal., 
April  T. 

10.  The  defendant,  in  a  suit  pending,  may  be  made  to  discover  books,  papers,  and 


212  INSPECTION   OF  DOCUMENTS.  §448 

documents  in  hif5  possession  or  power,  relating  to  the  merits  thereof,  and  which  are  nec- 
essary to  the  plaintiff,  to  enable  him  to  prepare  for  the  trial. —  Gould  v.  McCarty,  1 
Kern.,  575. 

11.  Parol  evidence  is  admissible  to  explain  the  meaning  of  characters,  marks,  and 
technical  tenns  used  in  a  particular  business. — Danny.  Fiedler,  2  Kern.,  40. 

12.  Where  two  letters  were  written  simultaneously,  signed  by  the  same  individual, 
containing  the  same  words,  and  addressed  to  the  same  person,  one  being  sent  to  the 
person  addressed,  and  the  other  retained  by  the  writer,  each  is  an  original,  and  the  one 
retained  may  be  given  in  evidence,  without  proving  any  notice  to  produce  the  other. — 
Hubbard  v.  Russell,  24  Barb.,  404. 

448.  The  party  producing  a  writing  as  genuine,  which  has  been 
altered,  or  appears  to  have  been  altered,  after  its  execution,  in  a  part 
material  to  the  question  in  dispute,  and  such  alteration  is  not  noted  on 
the  writing,  shall  account  for  the  appearance  or  alteration.  He  may 
show  that  the  alteration  was  made  by  another,  without  his  concurrence, 
or  was  made  with  the  consent  of  the  parties  affected  by  it,  or  otherwise 
properly  or  innocently  made.  If  he  do  that,  he  may  give  the  writing 
in  evidence,  but  not  otherwise. 

1 .  A  card  published  in  a  newspaper,  without  the  knowledge  of  either  party  to  the 
suit,  is  no  evidence  but  to  impeach  the  credibility  of  a  witness. — Dicinelle  v.  Ilenriquez, 
1  Cal.,  387. 

2.  It  is  error  to  admit  letters  in  evidence,  without  proving  that  they  were  written  by 
the  party  intended  to  be  charged  by  their  contents. — Sinclair  v.  Wood,  3  Cal.,  98. 

3.  To  prove  handwriting  of  a  subscribing  witness,  he  must  be  shown  to  be  beyond 
the  jurisdiction  of  the  court,  or  that  diligent  search  for  him  had  been  made  without 
avail. — Powell's  Heirs  v.  Hendricks,  3  Cal.,  427. 

449.  A  judicial  record  of  this  state,  or  of  the  United  States,  may 
be  proven  by  the  production  of  the  original,  or  a  copy  thereof,  certified 
by  the  clerk,  or  other  person  having  the  legal  custody  thereof,  under 
the  seal  of  the  court,  to  be  a  true  copy  of  such  record,  (a) 

See  Sec.  655. 

(a)    Statutes  of  1857, 103. 

An  act  concerning  evidence,  passed  March  26th,  1S57. 

1.  Whenever  the  public  records,  books  or  papers  in  the  "custody"  of  any  col- 
lector of  customs  of  the  United  States,  or  of  the  register  or  receiver  of  any  land  office 
of  the  United  States  within  this  state,  or  in  the  office  of  the  surveyor  general  of  the  United 
States  for  the  state  of  California,  or  in  the  office  and  in  the  custody  of  the  clerk  of  the 
circuit,  or  any  district  court  of  the  United  States  for  the  state  of  California,  shall  bo 
required  as  evidence  in  any  court  of  this  state,  copies  of  such  records,  books  or  papers, 


§450  INSPECTION    OF    DOCUMENTS.  213 

450.  [1854.]  The  records  and  judicial  proceedings  of  the  Courts 
of  anj  other  State  of  the  United  States,  may  be  proved  or  admitted  in 
the  courts  of  this  State,  by  the  attestation  of  the  clerk  and  the  seal  of 
the  court  annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the 


duly  certified  by  the  proper  officer  under  his  Imiid  and  official  seal,  where  he  has  a  seal, 
shall  be  received  in  evidence  with  the  same  force  and  effect  as  the  originals. 

Statutes  of  1857,  317. 

A71  act  concerning  certified  copies  of  certain  instrume7its  in  loriting, 
passed  April  29th,  1857. 

1 .  Copies  of  all  papers  lately  belonging  to  the  United  States  board  of  commis- 
sioners for  the  settlement  of  private  land  claims  in  California,  and  on  file  in  the  office 
of  the  surveyer  general  of  the  United  States  for  the  state  of  California,  and  all  copies 
of  docmnents  and  papers  belonging  to  said  sm'veyor's  office,  which  copies  shall  have 
been  duly  certified  to  be  true  copies  by  said  surveyor,  shall  be  received  and  read  in  evi- 
dence in  the  same  manner  and  with  like  effect  as  the  originals. 

2.  Duly  certified  copies  of  deeds  regularly  recorded  upon  the  acknowledgment  or 
proof  of  execution  by  the  party  or  parties  thereto,  subject  however,  to  all  the  legal  ex- 
ceptions that  might  be  taken  to  the  original  if  produced,  shall  be  received  iu  evidence  in 
all  the  courts  of  this  state,  without  any  further  or  other  proof  of  the  execution  thereof, 
in  the  same  manner  and  with  like  effect  as  if  the  originals  were  produced  and  proven ; 
provided,  it  be  shown  that  the  said  originals  are  not  under  the  control  of  the  party  offer- 
ing the  said  copies,  or  are  lost. 

3.  Any  person  wishing,  in  order  to  obtain  the  benefit  of  this  act,  to  establish  the 
genuineness  of  any  patent  for  land  issued  by  the  United  States,  or  by  this  state,  may 
apply  for  that  purpose  to  the  district  court  of  the  judicial  district  in  which  the 
patented  lands,  or  any  part  thereof,  are  situated,  after  giving  public  notice  of  the  time 
of  his  making  said  application,  at  least  five  days  previous  to  the  hearing  thereof,  either 
by  one  insertion  in  a  newspaper,  where  there  is  one  published  in  the  county  wherein 
the  lands  or  parcels  of  land  in  said  district  may  be  situated,  or  in  default  thereof,  by 
posting  said  notice  on  the  court  house  door  of  said  county;  provided,  that  notice  shall 
not  be  required  to  be  given  in  more  than  one  county  ;  upon  proof  being  made  that  the 
said  notice  was  duly  given,  the  district  court  shall  proceed  to  inspect  the  patent,  and 
upon  being  satisfied  that  it  is  genuine  may  endorse  thereupon  or  annex  thereto,  an  order 
under  the  seal  of  the  court,  declaring  said  patent  to  be  genuine  ;  and  if  the  court  be  not 
satisfied  tliat  the  said  patent  is  genuine,  then  no  other  [order]  shall  be  entered  or  made 
relative  thereto. 

4.  It  shall  be  the  duty  of  the  county  recorder  of  each  county  in  this  state  to  pro- 
vide a  separate  book  to  be  called  "  The  Record  of  Patents,"  wherein  shall  be  recorded 
all  patents  of  land  or  parcels  of  land  situate  in  their  county,  whether  issued  by  the 
United  States  or  the  state  of  California,  which  may  be  offered  for  record,  authenticated 
as  in  the  foregoing  section  mentioned ;  and  a  duly  certified  copy  of  any  patent  re- 
corded as  aforesaid,  may  be  offered  in  evidence  in  any  proceeding  or  action  in  tliis 
state,  with  tlie  same  effect  and  force  as  the  original  duly  exhibited  and  proven. 


214  IXSPECTIOX   OF   DOCUMENTS.  §451 

judge,  chief  justice,  or  presiding  magistrate,  as  the  case  may  be,  that 
the  said  attestation  is  in  due  form. 

1.  A  certificate  of  exemplification  of  a  judgment  rendered  in  another  state,  when 
attested  by  the  clerk,  under  the  seal  of  the  court,  and  ■where  the  presiding  judge  of  the 
court  certifies  that  the  attestation  is  in  due  form  of  law,  is  sufficient,  under  the  act  of 
Congress  of  May  26th,  1790,  to  sustain  an  action  upon  the  judgment  in  another  state. 
Thompson  v.  Manrow,  1  Cal.,  428. 

2.  The  legislature  cannot  require  a  greater  amount  of  proof  than  that  prescribed 
l>y  Congress,  but  may  require  less. — Parke  v.  Williams,  7  Cal.,  Jan.  T. 

451.  A  judicial  record  of  a  foreign  country  maybe  proved  by  the 
production  of  a  copy  thereof,  certified  by  tlie  clerk,  with  the  seal  of 
the  court  annexed,  if  there  be  a  clerk  and  seal ;  or  by  the  legal  keeper 
of  the  record,  with  the  seal  of  his  office  annexed,  if  there  be  a  seal, 

,  to  be  a  true  copy  of  such  record  :  together  -^-ith  a  certificate  of  a  judge 
of  the  court,  that  the  person  making  the  certificate  is  the  clerk  of  the 
court,  or  the  legal  keeper  of  the  record,  and  in  either  case,  that  the 
signature  is  genuine,  and  the  certificate  in  due  form  ;  and  also  together 
with  the  certificate  of  the  minister  or  embassador  of  the  United  States, 
or  of  a  consul  of  the  United  States,  in  such  foreign  country,  that  there 
is  such  a  court,  specifying  generally  the  nature  of  its  jurisdiction,  and 
verifying  the  signature  of  the  judge  and  clerk,  or  other  legal  keeper  of 
the  record. 

452.  A  copy  of  the  judicial  record  of  a  foreign  country  shall  also 
be  admissible  in  evidence  upon  proof: 

1st.  That  the  copy  ofiered  has  been  compared  by  the  witness  with 
the  original,  and  is  an  exact  transcript  of  the  whole  of  it ; 

2d.  That  such  original  Avas  in  the  custody  of  the  clerk  of  the  court, 
or  other  legal  keeper  of  the  same  ;  and 

3d.  That  the  copy  is  duly  attested  by  a  seal,  which  is  proved  to  be 
the  seal  of  the  court  where  the  record  remains,  if  it  be  the  record 
of  a  court ;  or  if  there  be  no  such  seal,  or  if  it  he  not  the  record  of  a 
court,  by  the  signature  of  the  legal  keeper  of  the  original. 

See  Sec.  655. 

45o.  Printed  copies,  in  volumes,  of  statutes,  code,  or  other  written 
law,  enacted  by  any  other  state,  territory,  or  foreign  government,  pur- 
porting or  proved  to  have  been  pul)lishcd  by  the  authority  thereof,  or 
proved  to  be  commonly  admitted  as  evidence  of  the  existing  law,  in 


§456  CERTIORARI.  215 

the  courts  and  judicial  tribunals  of  such  state,  territory  or  government, 
shall  be  admitted  by  the  courts  and  officers  of  this  state,  on  all  occa- 
sions, as  presumptive  evidence  of  such  laws. 
See  See.  655. 

454.  A  seal  of  a  court  or  public  office,  when  required  to  any  writ 
or  process,  or  proceeding,  or  to  authenticate  a  co])y  of  any  record  or 
document,  may  be  impressed  with  wax,  wafer,  or  any  other  substance, 
and  then  attached  to  the  writ,  process  or  proceeding,  or  to  the  copy 
of  the  record  or  document,  or  it  may  be  impressed  on  the  paper  alone. 

1.  Tlie  impression  of  the  seal  maybe  made  upon  paper  only. —  Connolhj  v.  Goodwin, 
5  Cal.,  220  ;  Ross  v.  Bedell,  5  Diier,  462. 


TITLE    XII. 

OF   THE   WRIT   OF   CERTIORARI  AND    OF  MANDAMUS. 

CHAPTER  I. 

THE   WaiT   OF   CERTIORARI,    OR  REVIEW. 

455.  The  writ  of  certiorari  may  be  denominated  the  writ  of  review. 

456.  This  w-rit  may  be  granted  on  apphcation,  by  any  court  of  this 
state,  except  a  justice's,  recorder's,  or  mayor's  court :  the  writ  shall  be 
granted  in  all  cases  when  an  inferior  tribunal,  board  or  officer,  exercis- 
ing judicial  functions,  has  exceeded  the  jurisdiction  of  such  tribunal, 
board  or  officer,  and  there  is  no  appeal,  nor  in  the  judgment  of  the 
court,  any  plain,  speedy  and  adequate  remedy. 

See  Sec.  653. 

1  A  review  and  not  a  mandate  should  issue  to  a  district  court  to  send  up  docu- 
ments where  no  appeal  would  lie. — Field  v.  Turnef,  1  Cal.,  152. 

2.  When  the  -writ  will  lie. — Ex  parte  Hanson,  2  Cal.,  262. 

3.  A  review  to  the  board  of  supervisors  on  the  ground  of  want  of  jurisdiction,  is 
premature  if  taken  before  the  action  of  the  board. —  Wilson  v.  Supervisors  of  Sacramento 
Co.,  3  Cal.,  386. 


216  CERTIORARI.  §457 

4.  A  party  against  whom  a  judgment  is  sought  to  be  enforced,  although  not  a  party 
to  the  mandate,  may  apply  for  a  writ  of  review. — Clary  v.  Iloagland,  5  Cal.,  47G. 

5.  When  the  county  court  may  issue  a  writ  of  review. — lb. 

6.  To  the  exercise  of  this  power  it  is  not  necessary  that  the  court  issuing  the  wTit, 
should  possess  appellate  jurisdiction. — Chard  v.  Uwrison,  7  Cal.,  Jan.  T. 

7.  A  district  court  can  issue  a  writ  to  compel  a  board  of  supervisors,  though  only  a 
quasi  judicial  body,  to  certify  their  proceedings  to  such  court  for  review. — People  v.  Su- 
pervisors of  El  Dorado  Co.,  7  Cal.,  July  T. ;  overruling  People  v.  Hester,  6  Cal.,  679. 

8.  The  writ  of  review  should  not  be  allowed  at  the  instance  of  an  individual  to  re- 
view proceedings  for  the  levying  a  tax  or  assessment  which  affects  a  considerable  num- 
ber of  persons. —  Wilson  v.  Maijor  of  New  York,  1  Abbott,  4  ;  Ex  parte  Fiftij-first  St., 
3  ib.,  232. 

9.  A  writ  of  review  stays  the  proceedings  of  the  officer  or  court  to  which  it  is  ad- 
dressed.—-Exj^arte  Conover,  5  ib.,  182  ;  24  Barb.,  636  ;  14  How.  Pr.,  348. 

10.  The  writ  is  generally  allowed  as  a  matter  of  course,  unless  it  is  apparent  great 
injustice  will  be  done  by  granting  it. — Ptojjle  v.  Peahodij,  5  Abbott,  194. 

1 1 .  When  it  appears  the  writ  was  granted  before  the  proceedings  reviewed  by  it  were 
terminated,  it  is  the  duty  of  the  court  to  direct  a  supersedeas  of  the  writ  to  be  enter- 
ed.—76. 

457.  The  application  shall  be  made  on  affidavit  bj  the  party  bene- 
ficially interested,  and  the  court  may  require  a  notice  of  the  application 
to  be  given  to  the  adverse  party,  or  may  grant  an  order  to  show  cause 
■why  it  should  not  be  allowed,  or  may  grant  the  writ  without  notice. 

458.  The  writ  may  be  directed  to  the  inferior  tribunal,  board  or 
officer,  or  to  any  other  person  having  the  custody  of  the  record  or  pro- 
ceedings to  be  certified.  When  directed  to  a  tribunal,  the  clerk,  if 
there  be  one,  shall  return  the  writ  with  the  transoript  required. 

459.  The  writ  of  review  shall  command  the  party  to  whom  it  is 
directed  to  certify  fully  to  the  court  issuing  the  writ,  at  a  specified 
time  and  place,  and  anne.x  to  the  writ  a  transcript  of  the  record  and 
proceedings,  (describing  or  referring  to  them,  with  convenient  certain- 
ty,) that  the  same  may  be  reviewed  by  the  court :  and  requiring  the 
party  in  the  mean  time  to  desist  from  further  proceedings  in  the  mat- 
ter to  be  reviewed. 

400.  If  a  stay  of  proceedings  be  not  intended,  the  words  requiring 
the  stay  shall  be  omitted  from  the  writ ;  these  words  may  be  inserted 
or  omitted  in  the  sound  discretion  of  the  court ;  but  if  omitted,  the 
power  of  the  inferior  court  or  officer  shall  not  be  suspended,  nor  the 
proceedings  stayed. 


§467  MANDATE.  217 

461.  The  writ  shall  be  served  in  the  same  manner  as  a  summons 
in  civil  action,  except  when  otherwise  expressly  directed  by  the  court. 

462.  The  review  upon  thi?  writ  shall  not  be  extended  further  than  to 
determine  whether  the  inferior  tribunal,  board  or  officer  has  regularly 
pursued  the  authority  of  such  tribunal,  board  or  officer. 

463.  If  the  return  of  t];ie  writ  be  defective,  the  court  may  order  a 
further  return  to  be  made.  ^  When  a  full  return  has  been  made,  the 
court  shall  proceed  to  heaii  the  parties,  or  such  of  them  as  may  attend 
for  that  purpose,  and  may  thereupon  give  judgment,  either  affirming, 
or  annulling,  or  modifying  the  proceedings  below. 

See  Sec.  25,  p.  15.  ^.       - 

464.  A  copy  of  the  judgment,  signed  by  the  clerk,  shall  be  trans- 
mitted to  the  inferior  tribunal,  board,  or  officer  having  the  custody  of 
the  record  or  proceeding  certified  up. 

465.  A  copy  of  the  judgment,  signed  by  the  clerk,  entered  upon, 
or  attached  to,  the  writ  and  return,  shall  constitute  the  judgment  roll. 
If  the  proceeding  be  had  in  any  other  than  the  supreme  court,  an  ap- 
peal may  be  taken  from  the  judgment  in  the  same  manner,  and  upon 
the  same  terms,  as  from  a  judgment  in  a  civil  action. 

1.     For  costs  on  writ  of  review,  see  Sec.  508. 

CHAPTER  II. 

THE   WKIT   OF   MANDATE,   OR  MANDAMUS. 

466.  The  writ  of  mandamus  may  be  denominated  the  writ  of  man- 
date. 

467.  It  may  be  issued  by  any  court  in  the  state,  except  a  justice's 
recorder's  or  mayor's  court,  to  any  inferior  tribunal,  corporation,  board 
or  person,  to  compel  the  performance  of  an  act,  which  the  law  specially 
•enjoins,  as  a  duty  resulting  from  an  office,  trust,  or  station  ;  or  to  com- 
pel the  admission  of  a  party  to  the  use  and  enjoyment  of  a  right,  or 
office  to  which  he  is  entitled,  and  from  which  he  is  unlawfully  preclud- 
ed by  such  inferior  tribunal,  corporation,  board,  or  person. 

See  Sec.  65.3. 
0 


218  JIAXDATE.  §468 

1.  The  supreme  court  may  exercise  its  jurisdiction  by  mandate. — People  v.  Turner, 
1  Ciil.,  143. 

2.  Mandate  is  proper  to  compel  a  district  court  to  restore  an  attorney  to  the  roll. — 76. 

3.  Judgment  may  be  affirmed  as  to  mandate,  and  reversed  as  to  costs. — McDougal 
V.  Roman,  2  Cal.,  80. 

4.  A  mandate  lies  to  compel  a  judge  of  a  district  court  to  enter  judgment  on  a  ref- 
eree's report. — Russell  v.  Elliott,  2  Cal.,  245. 

5.  A  mandate  will  not  lie  to  compel  an  inferior  court  to  issue  process. — Peralta  v. 
Adams,  2  Cal.,  594  ;  Adams  v.  Town,  3  Cal.,  247.      " '^^  ^t^  ''  />^  j</L^,...SLy 

6.  A  mandate  will  not  lie  against  a  sheriff  to  compel  him  to  make  a  deed  to  land  to 
a  purchaser  at  execution  sale,  who  refuses  to  pay  the  purchase  money,  for  the  reason 
that  he  is  the  oldest  judgment  and  execution  creditor,  and  entitled  to  the  money  ;  espec- 
ially, when  there  is  an  unsettled  contest  as  to  the  question  of  lien. — People  v.  Ilajjs,  4 
Cal.,  127  ;    Williams  v.  Snath,  6  Cal.,  91. 

7.  A  mandate  will  not  issue  to  compel  the  performance  of  an  act  where  the  party  is 
invested  with  discretionary  power,  but  will  issue  when  directory. — People  v.  Bell,  4 
Cal.,  177. 

8.  A  mandate  to  a  board  of  supervisors,  directing  them  to  issue  a  warrant  for  a 
specified  sum  is  irregular ;  it  should  direct  them  to  audit  the  account  and  issue  war- 
rants accordingly. —  Tuolumne  Co.  v.  Stanislaus  Co.,  6  Cal.,  440. 

9.  A  mandate  will  lie  to  compel  a  district  court  to  issue  a  writ  for  contempt  against 
parties  violating  an  injunction,  pending  an  appeal. — Merced  Mining/  Co.  v.  Fremont,  7 
Cal.,  April  T. 

10.  A  mandate  will  lie  to  compel  the  board  of  supervisors  to  issue  a  ferry  license 
when  the  right  should  be  granted. — Thomas  v.  Annstrontj,  7  Cal.,  Jan.  T. 

11.  A  mandate  is  the  proper  remedj'  to  compel  the  proper  officer  to  administer  the 
oath  of  office  to  a  party  entitled  to  enter  upon  that  office. — Ex  parte  Achleys,  4  Ab- 
bott, 35. 

12.  A  mandate  will  not  lie  to  compel  an  attorney  general  to  bring  an  action  in  the 
nature  of  a  quo  warranto. — People  v.  The  Attorney  General,  22  Barb.,  114. 

468.  The  writ  shall  be  issued  in  all  cases  where  there  is  not  a 
plain,  speedy  and  adequate  remedy,  in  the  ordmary  course  of  law.  It 
shall  be  issued  upon  affidavit,  on  the  application  of  the  party  bene- 
ficially interested. 

1.  A  mandate  will  not  lie,  where  there  is  any  other  specific,  speedy,  and  adequate 
remedy. — People  v.  Olds,  3  Cal.,  167  ;  People  v.  Noteware,  7  Cal.,  Jan.  T. ;  People  v. 
Dikeman,  7  How.  Pr.,  124. 

2.  A  mandate  partakes  of  the  character  of  a  public  writ,  and  is  not  allowed  except 
for  the  purpose  of  controlling  those  who  owe  a  public  duty  to  the  state  in  which  it  is- 
sues.— Ptojile  v.  Parker  Vein  Coal  Co.,  10  How.  Pr.,  543. 

3.  A  mandate  will  not  be  issued  where  an  appeal  will  lie  for  the  same  purpose. — 
Ludlum  V.  Jud^e  of  the  Fourth  Judicial  District,  8  Cal.,  Jan.  T. 

469.  The  writ  shall  be  either  alternative  or  peremptory  ;  the  alter- 


in    -■ 


§472  MANDATE.  219 

native  \\x\i  shall  state  generally  the  allegatiou  against  the  party  to 
whom  it  is  directed,  and  command  such  party,  immediately  after  the 
receipt  of  the  writ,  or  at  some  other  specified  time,  to  do  the  act  re-  0>  + 
quired  to  be  performed,  or  to  show  cause  before  the  court,  at  aspeci- 
fied^time  and_ place,  why  he  has  not  done  so.  The  peremptory  writ 
shall  be  in  a  similar  form,  except  that  the  words  requiring  the  party  to 
show  cause  why  he  has  not  done  as  commanded,  shall  be  omitted,  and 
a  return  day  shall  be  inserted. 

1.  A  demurrer  does  not  lie  to  an  alternative  writ  of  mandamus. — People  v.  Harris, 
6  Alibott,  30. 

470.  When  the  application  to  the  court  is  made  without  notice  to 
the  adverse  party,  and  the  writ  be  allowed,  the  alternative  shall  be 
first  issued  ;  but  if  the  application  be  upon  due  notice,  and  the  writ 
be  allowed,  the  peremptory  may  be  issued  in  the  first  instance.  The 
notice  of  the  apphcation,  when  given,  shall  be  at  least  ten  days.  The 
writ  shall  not  be  granted  by  default.  The  case  shall  be  heard  by  the 
court,  whether  the  adverse  party  appear  or  not. 

471.  On  the  return  of  the  alternative,  or  the  day  on  which  the  ap- 
phcation of  the  writ  is  noticed,  or  such  further  day  as  the  court  may 
allow,  the  party  on  whom  the  writ  or  notice  may  have  been  served, 
may  show  cause  by  answer  under  oath,  made  in  the  same  manner  as 
an  answer  to  a  complaint  in  a  civil  action. 

x/  472.  If  an  answer  is  made,  which  raises  a  question  as  to  a  matter 
of  fact  essential  to  the  determination  of  the  motion,  and  affecting  the 
substantial  rights  of  the  parties,  and  upon  the  supposed  truth  of  the 
allegation  of  which  the  application  for  the  writ  is  based,  the  court  may, 
in  its  discretion,  order  the  question  to  be  tried  before  a  jury,  and  post- 
pone the  argument  until  such  trial  can  be  had,  and  the  verdict  certi- 
fied to  the  court.  The  question  to  be  tried  shall  be  distinctly  stated 
in  the  order  for  trial,  and  the  county  shall  be  designated  in  which  the 
same  shall  be  had.  The  order  may  also  direct  the  jury  to  assess  any 
damages  which  the  applicant  may  have  sustained,  in  case  they  find 
for  him. 

Sec  Sec.  25,  p.  15. 

1.  If  a  mandate  is  applied  for,  to  compel  a  judge  to  sign  a  bill  of  exceptions,  and 
he  replies  he  has  signed  one,  and  it  becomes  a  question  of  fact  whether  he  signed  a  correct 


220  MANDATE.  §473 

one  or  not ;  that  is  not  snch  a  question  of  fact  as  should  be  submitted  to  a  jury. — Peo- 
ple V.  Judijt  of  the  Tenth  Judicial  District,  8  Cal.,  Jau  T. 

473.  On  the  trial,  the  apphcant  shall  not  be  precluded  hj  the  an- 
swer of  any  valid  objection  to  its  sufficiency,  and  may  countervail  it  by 
proof,  either  in  direct  denial,  or  by  way  of  avoidance. 

474.  If  either  party  be  dissatisfied  with  the  verdict  of  the  jury,  he 
may  move  for  a  new  trial  upon  a  statement  prepared  as  provided  in 
section  one  hundred  and  ninety-five.  The  motion  for  a  new  trial  may, 
upon  a  reasonable  notice,  be  brought  on  before  the  judge  of  the  court 
in  which  the  cause  was  tried,  either  in  term  or  vacation.  If  a  new 
trial  be  granted,  the  jury  shall,  within  five  days  thereafter,  unless  the 
parties  agree  on  a  longer  time,  be  summoned  to  try  the  isssue.  After 
a  second  verdict  in  favor  of  the  same  party,  a  new  trial  shall  not  be  had. 

475.  If  no  notice  for  a  new  trial  be  given,  or  if  given,  be  denied, 
the  clerk,  within  five  days  after  the  rendition  of  the  verdict  or  denial 
of  the  motion,  shall  transmit  to  the  court  in  which  the  application  for 
the  writ  is  pending,  a  certified  copy  of  the  verdict  attached  to  the 
order  of  trial ;  after  which,  either  party  may  bring  on  the  argument  of 
the  apphcation,  upon  reasonable  notice  to  the  adverse  party. 

47G.  If  no  answer  be  made  the  case  shall  be  heard  on  the  papers 
of  the  a})plicant.  If  an  answer  be  made  which  does  not  raise  a  ques- 
V  tion  such  as  is  mentioned  in  section  four  hundred  and  seventy-two,  but 
only  such  matters  as  may  be  explained  or  avoided  by  a  reply,  the 
court  may,  in  its  discretion,  grant  time  for  replying.  If  the  answer, 
or  answer  and  reply,  raise  only  questions  of  law,  or  put  in  issue  imma- 
terial statements,  not  afiecting  the  substantial  rights  of  the  parties,  the 
court  shall  proceed  to  hear,  or  fix  a  day  for  hearing  the  argument  of 
the  case. 

477.  If  judgment  be  given  for  the  applicant  he  shall  recover  the 
damages  which  he  shall  have  sustained,  as  found  by  the  jury,  or  as 
may  be  determined  by  the  court,  or  referee,  upon  a  reference  to  be 
ordered,  together  with  costs ;  and  for  such  damages  and  costs  an  exe- 
cution may  issue  ;  and  a  peremptory  mandate  shall  also  be  awarded 
without  delay. 


I 


§480  CONTEMPTS.  221 

478.  The  writ  shall  be  served  in  the  same  manner  as  a  summons  in 
a  civil  action,  except  when  otherwise  expressly  directed  by  ordei-  of  the 
court. 

479.  When  a  peremptory  mandate  has  been  issued  and  directed  to 
an  inferior  tribunal,  corporation,  boai'd,  or  person,  if  it  appear  to  the 
court,  that  any  member  of  such  tribunal,  corporation,  or  board,  or  such 
person,  upon  whom  the  writ  has  been  personally  served,  has,  without 
just  excuse,  refused  or  neglected  to  obey  the  same,  the  court  may, 
upon  motion,  impose  a  ifine  not  exceeding  one  thousand  dollars.  In 
case  of  persistence  in  a  refusal  of  obedience,  the  court  may  order  the 
party  to  be  imprisoned  for  a  period  not  exceeding  three  months,  and 
may  make  any  orders  necessary  and  proper  for  the  complete  enforce- 
ment of  the  writ.  If  a  fine  be  imposed  upon  a  judge  or  officer  who 
draws  a  salary  from  the  state  or  county,  a  certified  copy  of  the  order 
shall  be  forwarded  to  the  comptroller,  or  county  treasurer,  as  the  case 
may  be,  and  the  amount  thereof  may  be  retained  from  the  salary  of 
such  judge  or  officer.  Such  judge  or  officer,  for  his  willful  disobedi- 
ence shall  also  be  deemed  guilty  of  a  misdemeanor  in  office. 


TITLE    XIII. 

OF   CONTEMPTS   AND    THEIR   PUNISHMENTS. 

480.     The  following  acts  or  omissions  shall  be  deemed  contempts  : 

1st.  Disorderly,  contemptuous,  or  insolent  behavior  towards  the 
judge  whilst  holding  court,  or  engaged  in  his  judicial  duties  at  cham- 
bers, or  towards  referees  or  arbitratoi-s  whilst  sitting  on  a  reference  or 
arbitration,  tending  to  interrupt  the  due  course  of  a  trial,  reference  or 
arbitration,  or  other  judicial  proceeding  ; 

2d.  A  breach  of  the  peace,  boisterous  conduct,  or  violent  disturb- 
ance in  presence  of  the  court,  or  its  immediate  vicinity,  tending  to 
interrupt  the  due  course  of  a  trial,  or  other  judicial  proceeding  ; 

3d.  Disobedience  or  resistance  to  any  lawful  writ,  order,  rule  or 
process,  issued  by  the  court  or  judge  at  chambers  ; 


222  CONTEMPTS.  §481 

4tli.  Disobedience  of  a  subpoena  duly  served,  or  refusing  to  be 
sworn  or  answer  as  a  witness  ; 

otli.  Rescuing  any  person  or  property  in  the  custody  of  any  officer, 
by  virtue  of  an  order  of  process  of  such  court  or  judge  at  chambers. 

1.  3d.  The  power  of  the  court  to  punish  as  for  a  criminal  contempt,  "  willful  disobe- 
dience," should  not  be  exercised  unless  the  acts  constituting  the  alleged  contempt  are 
clearly  proved  and  constitute  a  positive  violation  of  the  plain  terms  of  the  process  or 
order. —  Weeks  v.  Smith,  3  Abbott,  211. 

2.  The  court  has  the  inherent  powerin  a  general  sense  of  punishing  as  for  contempt, 
disobedience  to  orders  made  by  judges  out  of  court. —  Wiclces  v.  Dresser,  4  Abbott,  93  ; 
13  How.  Pr.,  331. 

3.  4th.  A  person  cannot  be  deemed  guilty  of  contempt  for  disobedience  to  the  pro- 
cess of  the  court,  who  trespasses  upon  a  party  ^ut  in  possession  under  execution,  as  the 
authority  of  the  court  has  then  ceased. — Loriiuj  v.  Illslei/,  1  Cal.,  24. 

481.  When  a  contempt  is  committed  in  the  immediate  view  and 
presence  of  the  court,  or  judge  at  chambers,  it  may  be  punished  sum- 
marily ;  for  which  an  order  shall  be  made,  reciting  the  facts  as  occur- 
ring in  such  immediate  view  and  presence,  adjudging  that  the  person 
proceeded  against  is  thereby  guilty  of  a  contempt,  and  that  he  be 

/  <^T  .  punished  as  therein  prescribed.  When  the  contempt  is  not  committed 
in  the  immediate  view  and  presence  of  the  court,  or  judge  at  chambers, 
an  affidavit  shall  be  presented  to  the  court,  or  judge,  of  the  facts  con- 
stituting the  coutem[)t,  or  a  statement  of  the  facts  by  the  referees  or 
arbitrators. 

1.  Courts  are  exclusive  judges  of  their  own  contempts,  but  a  party  cannot  be  im- 
prisoned for  neglecting  or  refusing  to  do  what  appears  to  be  out  of  his  power  to  per- 
form.— Adams  v.  Uasktll,  6  Cal.,  31G;  Ex  parte  Cohen,  ib.,  318;  People  v.  Turtier,  1 
Cal.,  1.52. 

2.  A  statement  that  R.  was  committed  for  contempt  in  refusing  to  answer  certain 
questions  i)roi)ounded  to  him  by  tlic  grand  jury,  is  not  a  compliance  with  the  section. 
The  (picstions  asked  should  be  set  out. — Ex  parte  Rowe,  7  Cal.,  Jan.  T. 

482.  When  a  contempt  is  not  committed  in  immediate  view  and 
presence  of  the  court  or  judge,  a  warrant  of  attachment  may  be  issued 
to  bring  the  person  charged  to  answer,  or  without  a  jjrevious  arrest,  a 
warrant  of  commitment  may,  upon  notice,  or  upon  an  order  to  show 
cause,  be  granted ;  and  no  warrant  of  commitment  shall  be  issued 
without  such  previous  attachment  to  answer,  or  such  notice  or  order  to 
show  cause. 


§489  CONTEMPTS.  223 

483.  "Wlienever  a  warrant  of  attachment  is  issued  pursuant  to  this 
chapter,  the  court  or  judge  shall  direct  whether  the  person  charged 
may  be  let  to  bail  for  his  appearance,  upon  the  warrant,  or  detained  in 
custody  without  bail ;  and  if  he  may  be  bailed,  the  amount  in  which  he 
may  be  let  to  bail.  The  directions  given  in  this  respect  shall  be 
specified  in  the  warrant,  or  endorsed  thereon. 

484.  Upon  executing  the  warrant  of  attachment,  the  sheriff  shall 
keep  the  person  in  custody,  bring  him  before  the  court  or  judge,  and 
detain  him  until  an  order  be  made  in  the  premises,  unless  the  person 
arrested  entitle  himself  to  be  discharged,  as  provided  in  the  next 
section.  x 

485.  When  a  direction  to  let  the  person  arrested  to  bail,  is  contained 
in  the  warrant  of  attachment,  or  endorsed  thereon,  he  shall  be  discharged 
from  the  arrest,  upon  executing  and  delivering  to  the  ofiicer,  at  any 
time  before  the  return  day  of  the  warrant,  a  written  undertaking,  with 
two  sufficient  sureties,  to  the  effect  that  the  person  arrested  will  appear 
on  the  return  of  the  warrant  and  abide  the  order  of  the  court  or  judge 
thereupon  ;  or  they  will  pay  as  may  be  directed,  the  sum  specified  in 
the  warrant- 

486.  The  officer  shall  return  the  warrant  of  arrest  and  undertak- 
ing, if  any,  received  by  him  from  the  person  arrested,  by  the  return 
day  specified  therein. 

487.  AVhen  the  person  arrested  has  been  brought  up  or  appeared, 
the  court  or  judge  shall  proceed  to  investigate  the  charge,  and  shall 
hear  any  answer  which  the  person  arrested  may  make  to  the  same,  and 
may  examine  witnesses  for  or  against  him,  for  which  an  adjournment 
may  be  had  from  time  to  time,  if  necessary. 

488.  Upon  the  answer  and  evidence  taken,  the  court  or  judge 
shall  determine  whether  the  person  proceeded  agamst  is  guilty  of  the 
contempt  charged,  and  if  it  be  adjudged  that  he  is  guilty  of  the  con- 
tempt, a  fine  may  be  imposed  on  him  not  exceeding  five  hundred 
dollars,  or  he  may  be  imprisoned  not  exceeding  five  days,  or  both. 

489.  When  the  contempt  consists  in  the  omission  to  perform  an 


s^^^s. 


224  CONTEMPTS.  §490 

act  which  is  yet  in  the  power  of  the  person  to  perform,  he  may  be  impris- 
oned until  he  have  perfoinnecl  it,  and  in  that  case  the  act  shall  be 
specified  in  the  warrant  of  commitment. 

1.  If  a  party  be  imprisoned  for  contempt  in  not  answering  questions  pertinent  in 
an  action,  he  will  be  discharged  when  that  action  has  abated. — Ex  parte  Roice,  7  Cal., 
Jan.  T. 

490.  Persons  proceeded  against  according  to  the  provisions  of  this 
chapter,  shall  also  be  liable  to  indictment  for  the  same  misconduct,  if 
it  be  an  indictable  offense  ;  but  the  court  before  which  a  conviction  is 
had  on  the  indictment,  in  passing  sentence,  shall  take  into  considera- 
tion the  punishment  before  inflicted. 

491.  When  the  warrant  of  arrest  has  been  returned  served,  if  the 
person  arrested  do  not  appear  on  the  return  day,  the  court  or  judge 
may  issue  another  warrant  of  arrest,  or  may  order  the  undertaking  to 
be  prosecuted,  or  both.  If  the  undertaking  be  prosecuted,  the  meas- 
ure of  damages  in  the  action  shall  be  the  extent  of  the  loss  or  injury 
sustained  by  the  aggrieved  party,  by  reason  of  the  misconduct  for 
which  the  warrant  was  issued,  and  the  costs  of  the  proceeding. 

492.  Whenever  by  the  provisions  of  this  chapter,  an  oflBcer  is  re- 
quired to  keep  a  person,  arrested  on  a  warrant  of  attachment,  in  custody, 
and  to  bring  him  before  a  court  or  judge,  the  inability,  from  illness  or 
otherwise,  of  the  person  to  attend  shall  be  a  sufficient  excuse  for  not 
bringing  him  up  ;  and  the  officer  shall  not  confine  a  pci-son  an'cstcd 
upon  the  warrant  in  a  prison,  or  otherwise  restrain  him  of  personal 
liberty,  except  so  far  as  may  be  necessary  to  secure  his  personal  at- 
tendance. 

1.  "Where  an  order  of  the  district  court,  fining  and  imprisoning  for  contempt,  does 
not  specify  on  its  face  wherein  the  contempt  consisted,  it  will  bo  revei-sed  on  certiorari. — 
Ex  parte  Field,  1  Cal.,  187. 

493.  The  judgment  and  orders  of  the  court  or  judge,  made  in  cases 
of  contempt,  shall  be  final  and  conclusive.  The  punislmient  shall  be 
by  fine  or  imprisonment,  but  no  fine  shall  exceed  the  sum  of  five  hun- 
dred dollars,  and  no  imprisonment  shall  exceed  the  period  of  five  days, 
except  as  provided  in  section  four  hundred  and  eighty-nine. 

1.  This  order  is  liable  to  be  reviewed  by  a  higher  tribunal. — Ex  parte  Cohen,  5  Cal., 
494. 


U06  COSTS.  225 


TITLE    XIV. 


OF  COSTS.  -fc 

494.  [1853,  1855.]  The  measure  and  mode  of  compensation  of 
attorneys  and  counselors  shall  be  left  to  the  agreement,  express  or  im- 
plied, of  the  parties.  But  there  shall  be  allowed  to  the  prevailing 
party  in  any  action  in  the  supreme  court,  district  courts  and  county 
courts,  his  costs  and  necessary  disbursements  in  the  action  or  special 
proceeding  in  the  nature  of  an  action. 

1.  An  attorney  has  no  lien  on  a  judgment  for  his  fee. — Ex  parte  Kyle,  1  Cal., 
331  ;  Noxon  v.  Gregory,  5  How.  Pr.,  339  ;  Benedict  v.  Harlow,  ib.,  347. 

2.  Counsel  fees,  when  stipulated,  are  a  mere  incident' of  the  judgment,  and  should 
be  annexed  to  the  costs. — Carrihe  v.  Minturn,  5  Cal.,  435 ;  Gronjier  v.  Mintarn,  ib., 
492. 

495.  [1853.]  Costs  shall  be  allowed  of  course  to  the  plaintiff 
upon  a  judgment  in  his  favor,  in  the  following  cases : 

1st.  In  an  action  for  the  recovery  of  real  property ; 

2d.  In  an  action  to  recover  the  possession  of  personal  property, 
when  the  value  of  the  property  amounts  to  two  hundred  dollars  or 
over.  Such  value  shall  be  determined  by  the  jury,  court  or  referee, 
by  whom  the  action  is  tried  ; 

3d.  In  an  action  for  the  recovery  of  money  or  damages  where  plain- 
tiff recovers  two  hundred  dollars^^or  over  ; 

4th.  In  a  special  proceeding  in  the  nature  of  an  action. 

See   Sec.  235. 

1.  Where  a  remittitur  is  sent  down,  the  clerk  of  the  district  court  may  issue  exe- 
cution for  costs. — Mayor  of  Maryxville  v.  Buchanan,  3  Cal.,  212. 

2.  The  plaintiff  is  bound  by  his  statement  of  the  value  of  the  property,  if  no  other 
is  found  by  the  court,  and  costs  will  be  taxed  accordingly. — Edgar  v.  Gray,  5  Cal.,  267. 

3.  "Where  a  plaintiff  recovers  less  than  two  hundred  dollars,  but  extinguishes  a 
counter  claim  set  up  in  the  answer,  which  exceeds  that  amount,  neither  party  is  entitled 
to  costs. — Kaltv.  Lignot,3  Abbott,  33,  190. 

496.  When  several  actions  are  brought  on  one  bond,  undertaking, 
promissory  note,  bill  of  exchange,  or  other  instrument  in  writing,  or  in 


226  COSTS.  §497 

any  other  case  for  the  same  cause  of  action,  against  several  parties 
"who  might  have  been  joined  as  defendants  in  the  same  action,  no  costs 
shall  be  allowed  to  the  plaintiff  in  more  than  one  of  such  actions,  which 
may  be  at  his  election,  if  the  party  proceeded  against  in  the  other  ac- 
tions were  at  the  commencement  of  the  previous  action  openly  within 
this  state  ;  but  the  disbursements  of  the  plaintiff  shall  be  allowed  to 
him  in  each  ^igp*ion  [action.] 


497.  Costs  shall  be  allowed,  of  course,  to  the  defendant,  upon  a 
judgment  in  his  favor  in  the  actions  mentioned  in  section  four  hun- 
dred and  ninety-five,  and  in  a  special  proceeding  in  the  nature  of  an 
action. 

See  note  to  Sec.  145. 

1.  Where  several  defendants  defend  successfully  by  different  attorneys  who  are 
partners,  but  one  bill  of  costs  can  be  allowed  ;  but  otherwise,  if  they  are  not  partners. 
—  CoUonib  V.  Caldwell,  5  How.  Pr.,  3.3  G  ;   Crofts  v.  llockefdler ,  6  ib.,  9. 

2.  Where  several  defendants  are  sued  and  judgment  obtained  by  plaintiff  against  a 
part  only,  the  others  who  obtain  judgment  against  the  plaintiff,  are  entitled  to  costs. — 
Uinds  V.  Mi/ers,  4  How.  Pr.,  356  ;  Cui/ler  v.  Coats,  10  ib.,  141  ;  Daniels  v.  Lyon,  5  Scl- 
den,  549. 

498.  In  other  actions  than  those  mentioned  in  section  495,  costs 
may  be  allowed,  or  not ;  and  if  allowed,  may  be  apportioned  between 
the  parties,  on  the  same  or  adverse  sides,  in  the  discretion  of  the 
court ;  but  no  costs  shall  be  allowed  in  an  action  for  the  recovery  of 
money  or  damages  Avhen  the  plaintiff  recovers  less  than  two  hundred^ 
dollars,  nor  in  an  action  to  recover  the  possession  of  personal  property, 
when  the  value  of  the  property  is  less  than  two  hundred  dollars. 

1.  Costs  are  an  incident  of  the  judgment  to  be  taxed  by  the  clerk  or  court,  and  can- 
not be  given  l)y  the  jury  as  damages  wliere  less  than  two  hundred  dollars  is  recovered. — 
Shayv.  Tuolumne  ]Vater  Co.,  G  Cal.,  289. 

2.  An  action  brought  after  an  irregular  levy  and  sale,  to  enjoin  the  parties  from  per- 
fecting the  sale,  and  to  recover  damages  for  the  injury  already  done,  is  one  of  those  ac. 
tions  in  wliich  costs  are  in  the  discretion  of  the  court. — Sunney  v.  Roach,  4  Abbott,  IG. 

499.  When  there  are  several  defendants  in  the  actions  mentioned 
in  section  four  hundred  and  ninety-five,  not  united  in  interest,  and 
making  separate  defenses  by  separate  answers,  and  the  plaintiff  fails 
to  recover  judgment  against  all,  the  court  shall  award  costs  to  such  of 
the  defendants  as  have  judgment  in  their  favor. 

1.     In  an  action  for  tort  against  two,  where  tliere  is  a  verdict  in  favor  of  one  defend- 


§507  COSTS.  227 

ant,  and  in  favor  of  the  plaintiff  against  the  other  defendant,  the  defendant  prevailing, 
is  entitled,  of  course,  to  costs  under  this  section. — Decker  v.  Gardiner,  4  Seld.,  29. 

2.  Where  there  is  but  one  set  of  papers,  one  argument  and  one  judgment,  there  is 
but  one  appeal,  and  the  successful  party  is  entitled  to  but  one  bill  of  costs,  notwithstand- 
ing that  the  several  adverse  parties  appeared  by  ditlerent  attorneys. — Everson  v.  Gehr- 
man,  2  Abbott,  413. 

500.  In  the  following  cases  the  costs  of  an  appeal  shall  be  in  the 
discretion  of  the  court :  '^•^ 

1st.  When  a  new  trial  is  ordered  ; 
2d.  When  a  judgment  is  modified. 

1.  Where  a  judgment  was  affirmed  in  part,  and  reversed  in  part,  the  respondent 
was  allowed  his  costs  in  the  court  below,  but  was  required  to  pay  the  costs  of  appeal. — 
Colev.  Swanston,  1  Cal.,  51. 

See  Rule  XXXI. 

501,  502,  503.     [1855.]  Repealed. 

501.  The  fees  of  referees  shall  be  five  dollars  to  each,  for  every 
day  spent  in  the  business  of  the  reference  ;  but  the  parties  may  agree 
in  writing  upon  any  other  rate  of  compensation,  and  thereupon  such 
rate  shall  be  allowed.  , 

505.  [1855.]  When  an  application  is  made  to  a  court  or  referee  to 
postpone  a  trial,  the  payment  of  costs  occasioned  by  the  postponement 
may  be  imposed,  in  the  discretion  of  the  court  or  referee,  as  a  condi- 
tion of  granting  the  same. 

506.  When,  in  an  action  for  the  recovery  of  money  only,  the  de- 
fendant alleges  in  his  answer,  that  before  the  commencement  of  the 
action  he  tendered  to  the  plaintiff  the  full  amount  to  which  he  was  en- 
titled, and  thereupon  deposits  in  court,  for  the  plaintiff,  the  amount  so 
tendered,  and  the  allegation  be  found  to  be  true,  the  plaintiff  shall  not 
recover  costs,  but  shall  pay  costs  to  the  defendant. 

1.  The  answer  must  aver  a  readiness  still  to  pay  the  tender ;  it  is  an  essential  part 
of  the  plea. — Korlrujiitx.  Cadi/,  23  Barb.,  490  ;  5  Abbott,  358. 

2.  Evidence  of  waiver  of  tender  by  opposite  party,  is  competent  and  sufficient  to 
support  the  averment  of  tender. — Holmes  v.  Holmes,  5  Sold.,  525. 

3.  It  is  very  doubtful  if  a  tender  can  now  be  made  after  suit  brought,  unless  in  the 
form  of  sec.  390,  an  ojfer  to  take  judgment. — Thurston  v.  Marsh,  14  How.  Pr.,  572. 

507.  In  an  action  prosecuted  or  defended  by  an  executor,  adminis- 
trator, trustee  of  express  trust,  or  a  person  expressly  authorized  by 


228  COSTS.  §508 

statute,  costs  may  be  recovered  as  in  action  by  and  against  a  person 
prosecuting  or  defending  in  Lis  own  right ;  but  such  costs  shall,  by 
the  judgment,  be  made  chargeable  only  upon  the  estate,  fund,  or  party 
represented,  unless  the  court  shall  direct  the  same  to  be  paid  by  the 
plaintiff  or  defendant,  personally,  for  mismanagement  or  bad  faith  in 
the  action  or  defense. 

■< 

508.  When  the  decision  of  a  court  of  inferior  jurisdiction  in  a  spe- 
cial proceeding  is  brought  before  a  court  of  higher  jurisdiction  for  a  re- 
view in  any  other  way  than  by  appeal,  the  same  costs  shall  be  allowed 
as  in  cases  on  appeal,  and  may  be  collected  by  execution,  or  in  such 
manner  as  the  court  may  direct,  according  to  the  nature  of  the  case. 

509.  On  the  commencement  of  an  action,  the  plaintiff,  and  on  the  fil- 
ing of  notice  of  appeal  from  a  final  judgment,  the  appellant,  shall  pay  to 
the  clerk  three  dollars,  to^^o-applipd  toJliiLpajaiignt  of  the  salary  of  the 

jnrlgp  ar  jjj^lj^^n  nf  tlip  nn^irt  injaJiinh  tbo  |>a.ymAnt.  is  mndp.      Each  clerk 

shall  keep  an  account  of  money  so  received,  and  shall  pay  over  the  same, 
at  the  end  of  eadi  month,  to  the  iujfee  or  judges  of  the  court,  taking 
*>  duplicate  receipt  of  each  payment,\me  of  which  shall\be  filed  by  the 

clerk  in  his  own  cburt.  On  the  first  day-<if  each  monNi  the  clerk  of 
each  county  court  shaTh^Qliver  to  the  treasunn:  of  his  c Aunty,  an  ac- 
count of  all  sums  received,  s[J©<jifying  the  cases  m  which  Deceived,  and 
of  all  sums  paid  out,  with  the  receipt  of  the  judge  or  jatlgcs  therefor  ; 
at  the  same  time  a  like  account  shall  be  forwarded  by  the  clerks  of  the 
district  courts  to  the  comptrollei*  of  the  state,  of  the  sums  paid  into 
their  respective  courts,  and  of  tliVsums  paid  out,  with  the  receipts  of 
JXyJ  ■  A-e)^  the  judges  therefor.  In  paying  tli\salary  of  any  district  judge,  the 
comptroller,  and  in  paying  the  salary  of  any  county  judge,  the  county 
treasurer,  shall  deduct  the  amount  paid  to  such  judge  or  judges,  under 
the  provisions  of  this  section,  as  shown  by  the  receipts  of  the  judge  or 
juflges  in  their  respective  offices. 

510.  [1854.]  The  party  in  whose  favor  judgment  is  rendered,  and 
■who  claims  his  costs,  shall  deliver  to  the  clerk  of  the  court  within  two 
days  after  the  verdict  or  decision  of  the  court,  a  memorandum  of  the 
items  of  his  costs  and  necessary  disbursements  in  the  action  or  pro- 
ceeding, Avhich  memorandum  shall  be  verified  by  the  oath  of  the  party, 


r^j 


§514  COSTS.  229 

or  his  attorney,  stating  that  the  items  are  correct,  and  that  the  dis- 
bursements have  been  necessarily  incurred  in  the  action  or  proceeding. 

1.     For  amendment,  or  re-taxation  of  costs. — Burnham  v.  Ilaj/s,  3  Cal.,  115. 

511.  The  clerk  shall  include  in  the  judgment  entered  up  by  him, 
the  costs,  the  per  centage  allowed,  and  any  interest  on  the  verdict 
from  the  time  it  was  rendered. 

512.  When  the  plaintiff  in  an  action  resides  out  of  the  state,  or  is 
a  foreign  corporation,  security  for  the  costs  and  charges  which  may  be 
awarded  against  such  plaintiff,  may  be  required  by  the  defendant. 
When  required,  all  proceedings  in  the  action  shall  be  stayed  until  an 
undertaking,  executed  by  two  or  more  persons,  be  filed  with  the  clerk, 
to  the  effect  that  they  will  pay  such  costs  and  charges  as  may  be 
awarded  against  the  plaintiff  by  judgment,  or  in  the  progress  of  the 
action,  not  exceeding  the  sum  of  three  hundred  dollars.  A  new  or  an 
additional  undertaking  may  be  ordered  by  the  court  or  judge,  upon 
proof  that  the  original  undertaking  is  insufficient  security,  and  pro- 
ceedings in  the  action  stayed  until  such  new  or  additional  undertaking 
be  executed  and  filed. 

1 .  A  foreign  goveniment  suing  in  a  court  of  the  state  may  be  required  to  file  security 
for  costs. — Republic  of  Mexico  v.  Arrangois,  3  Abbott,  470. 

2.  The  defendant  has  the  right  to  security  for  costs  only,  where  all  the  plaintiffs  are 
non-residents.-Ljen  Broeck  v.  Reynolds,  13  How.  Pr.,  462. 

3.  Where  plaintiffs  have  once  put  in  security  for  costs  required  by  statute,  they  can- 
not be  ordered  to  file  new  security,  although  the  security  on  the  original  undertaking 
became  insolvent. — Hartford  Quarrij  Co.,  v.  Pendleton,  4  Abbott,  460. 

513.  Each  of  the  sureties  on-  the  undertaking  mentioned  above 

/   .  .  . 

shall  annex  to  the  same  an  affidavit  that  he  is  a  resident  and  house- 
holder or  freeholder  within  the  county,  and  is  worth  double  the 
amount  specified  in  the  undertaking,  over  and  above  all  his  just  debts 
and  liabilities,  exclusive  of  property  exempt  from  execution. 

514.  After  the  lapse  of  thirty  days  from  the  service  of  notice  that 
security  is  required,  or  of  an  order  for  new  or  additional  security,  upon 
proof  thereof,  and  that  no  undertaking  as  required  has  been  filed,  the 
court  or  judge  may  order  the  action  to  be  dismissed. 


230  lyiOTioxs  and  notices.  §515 


i/fA^y 


TITLE    XV. 

OF  MOTIONS,   ORDERS,   NOTICES,    SERVICE    OF   PAPERS,   AND 
MISCELLANEOUS   PROVISIONS. 

515.  Every  direction  of  a  court  or  judge  made  or  entered  in  -writing 
0            and  not  included  in  a  judgment,  is  denominated  an  order.     An  appli- 
cation for  an  order  is  a  motion. 

See  Sec.  25,  p.  15. 

1 .  If  a  part}'  to  an  action  proceeds  upon  an  order  made  in  a  cause  or  accepts  any 
benefit  under  it,  he  will  be  precluded  from  asking  its  review. — Radivai/  v.  Graham,  4 
Abbott,  468. 

516.  Motions  shall  be  made  in  the  county  in  which  the  action  is 
brought,  or  in  an  adjoining  county  in  the  same  district. 

517.  [1853.]  When  a  written  notice  of  a  motion  is  necessary,  it 
shall  be  given,  if  the  court  be  held  in  the  same  district  with  both  par- 
ties, five  days  before  the  time  appointed  for  the  hearing,  otherwise  ten 
days  ;  but  the  court,  or  judge,  or  county  judge,  may  prescribe  a  shorter 
time. 

See  Sec.  531 . 

1.  A  slight  error  in  the  title  of  the  cause,  when  there  is  no  other  suit  pending  be- 
tween the  parties,  will  not  invalidate  the  notice. — Mills  v.  Dttnlap,  3  Cal.,  94. 

2.  Statutes  fixing  the  time  for  filing  papers  in  a  cause,  are  merely  directory,  and  the 
court  has  it  always  in  its  power,  in  the  exercise  of  a  proper  discretion,  to  extend  the 
time  fixed  by  law,  whenever  the  ends  of  justice  would  seem  to  demand  sucli  an  exten- 
sion.—  ]\'uod  V.  Fobes,  5  Cal.,  G2. 

3.  Defective  papers  served  should  be  immediately  returned  or  notice  given  to  the 
party  from  whom  they  are  received,  that  they  will  be  disregarded  ;  a  delay  of  five  or 
six  days  will  be  construed  into  an  acceptance. —  Wriijld  v.  Forl>es,  I  How.  Pr.,  240  ;  Cort- 
land Mutual  Insurance  Co.  v.  Lathrop,  2  ib.,  146  ;  Knickerbocker  v.  Loucks,  3  ib.,  64  ; 
Levi  V.  Jakeways,  4  ib.,  126. 

518.  When  a  notice  of  motion  is  given,  or  an  order  to  show  cause  is 
made  returnable  before  a  judge  out  of  court,  and  at  the  time  fixed  for 
the  motion,  or  on  the  return  day  of  the  order,  the  judge  is  unable  to 
hear  the  parties,  the  matter  may  be  transferred  by  his  order  to  some 
other  judge,  before  whom  it  might  originally  have  been  brought. 


J-p 


§r)22  MOTIONS    AND    NOTICES.  231 

519.  Written  notices  and  other  papers,  ^vhen  required  to  be  served 
on  the  party  or  attorney,  shall  be  served  in  the  manner  prescribed 
in  the  next  three  sections,  when  not  otherwise  provided  ;  but  nothing 
in  this  title  shall  be  applicable  to  original  or  final  process,  or  any  pro- 
ceedings to  bring  a  party  into  contempt. 

1.  Service  of  a  notice  or  other  papers  on  a  Sunday,  is  irregular  and  void. — Fidd  v. 
Par):,  20  John.,  140. 

520.  The  service  may  be  personal,  by  delivery  to  the  party  or 
attorney,  on  whom  the  service  is  required  to  be  made,  or  it  may  be  as 
follows : 

1st.  If  upon  an  attorney,  it  may  be  made  during  his  absence  from 
his  office,  by  leaving  the  notice  or  other  papers  with  his  clerk  therein, 
or  with  a  person  having  charge  thereof ;  or  when  there  is  no  person  in 
the  office,  by  leaving  them,  between  the  hours  of  eight  in  the  morning 
and  six  in  the  afternoon,  in  a  conspicuous  place  in  the  office  ;  or  if  it  JT P 
be  not  open,  so  as  to  admit  of  such  service,  then  by  leaving  them  at 
the  attorney's  residence,  with  some  person  of  suitable  age  and  discre- 
tion ;  and  if  his  residence  be  not  known,  then  by  putting  the  same  en- 
closed in  an  envelope,  into  the  post-office,  directed  to  such  attorney ; 

2d.  If  upon  a  party,  it  may  be  made  by  leaving  the  notice  or  other 
paper  at  his  residence,  between  the  hours  of  eight  in  the  morning  and 
six  in  the  evening,  with  some  person  of  suitable  age  and  discretion  ; 
and  if  his  residence  be  not  known,  by  putting  the  same,  enclosed  in  an 
envelope,  into  the  post-office  directed  to  such  party. 

521.  Service  by  mail  may  be  made,  Avhere  the  person  making  the 
service,  and  the  person  on  whom  it  is  to  be  made,  reside  in  different 
places,  between  which  there  is  a  regular  communication  by  mail. 

1.  When  the  paper  is  tiius  deposited  in  the  proper  post-office,  correctly  addres.sed 
and  postage  paid,  the  service  is  deemed  complete,  and  the  party  to  whom  it  is  addressed 
takes  the  risk  of  the  failure  of  the  mail. — Lauier  v.  Saratoga  Mutual  Insurance  Co.,  2 
CodeR..,  114;  Jacobs  v.  Hooker,  1  Barb.,  71 ;  Schenck  v.  McKie,  4  How.  Pr.,  246. 

522.  In  case  of  service  by  mail,  the  notice  or  other  paper  shall  be 
deposited  in  the  post-office,  addressed  to  the  person  on  whom  it  is  to 
be  served,  at  his  place  of  residence,  and  the  postage  paid.  And  in 
such  case  the  time  of  service  shall  be  increased  one  day  for  every 
twenty  miles  distance  between  the  place  of  deposit  and  the  place  of 
the  address. 


}f- 


J^- 


Jf 


232  MOTIONS    AND    NOTICES.  §523 

1 .  Giving  notice  by  mail  is  depositing  a  letter  containing  tlie  requisite  information, 
properly  addressed,  into  the  post-office. —  Vassar  v.  Camp,  14  Barb.,  341. 

523.  A  defendant  shall  be  deemed  to  appear  in  an  action  when  he 
answers^  demurs,  or  gives  the  plaintiffwritten  notice  of  his  appearance, 
or  when  an  attorney  gives  notice  of  appearance  for  him.  After  ap- 
pearance, a  defendant  or  his  attorney  shall  be  entitled  to  notice  of  all 
subsequent  proceedings,  of  which  notice  is  required  to  be  given.  But 
where  a  defendant  has  not  appeared,  service  of  notice  or  papers  need 
not  be  made  upon  him,  unless  he  be  imprisoned  for  want  of  bail. 

52-i.  AVhen  a  plaintiff  or  a  defendant  who  has  appeared  resides  out 
of  the  state,  and  has  no  attorney  in  the  action  or  proceeding,  the  service 
may  be  made  on  the  clerk  for  him.  But  in  all  cases  where  a  party 
has  an  attorney  in  the  action  or  proceeding,  the  service  of  papei-s,  when 
required,  shall  be  upon  the  attorney  instead  of  the  party,  except  of 
subpoenas,  of  writs,  and  other  process  issued  in  the  suit,  and  of  papers 
to  bring  him  into  contempt. 

1 .  Wiicre  a  party  changes  his  attorneys  in  an  action,  and  there  is  no  regular  substi- 
tution of  attorneys  as  pointed  out  by  statute,  notices  may  be  served  on  the  attorney  of 
record. — Grant  v.  White,  6  Cal.,  55. 

2.  It  is  irregular  to  serve  papers  in  a  cause  upon  the  attorney,  after  he  becomes  a 
non-resident. — Diefendorfv.  House,  9  How.  Pr.,  243. 

525.  Successive  actions  may  be  maintained  upon  the  same  contract 
or  transaction,  whenever,  after  the  former  action,  a  new  cause  of  action 
arises  therefrom. 

526.  Whenever  two  or  more  actions  are  pending  at  one  time  be- 
tween the  same  parties,  and  in  the  same  court,  upon  causes  of  action 
which  might  have  been  joined,  the  court  may  order  the  actions  to  be 
consolidated  into  one. 

1.  This  may  lie  on  tlic  motion  of  plaintift'or  defendant. — Brigfjs  v.  Gaunt,  4  Duer, 
664. 

527.  An  action  may  be  brought  by  one  person  against  another,  for 
the  purpose  of  determining  an  adverse  claim  which  the  latter  makes 
against  the  former,  for  money  or  property,  upon  an  alleged  obligation  ; 
and  also  against  two  or  more  persons,  for  the  purpose  of  compelling 
one  to  satisfy  a  debt  due  to  the  other,  for  which  the  plaintiff  is  bound 
as  security. 


§532  COSTS.  233 

1.     The  provisions  of  this  section  snstaincd. — King  v.  IlaU,  5  Cal.,  82. 

528.  The  clerk  shall  keep  among  the  records  of  the  court,  a  reg- 
ister of  actions.  He  shall  enter  therein  the  title  of  the  action,  with 
brief  notes  under  it,  from  time  to  time,  of  all  papers  filed,  and  pro- 
ceedings had  therein. 

529.  "When  there  aj'e  three  referees,  or  three  arbitrators,  all  shall 
meet,  but  two  of  them  may  do  any  act  Avhich  might  be  done  by  all. 

530.  The  time  within  which  an  act  is  to  be  done,  as  provided  in 
this  act,  shall  be  computed  by  excluding  the  first  day  and  including 
the  last.     If  the  last  day  be  Sunday,  it  shall  be  excluded. 

See  notes  to  Sec.  30  for  service  of  snmmous. 

1.  Easton  v.  Chamberlin,  3  How.  Pr.,  412  ;  Daijton  v.  Mclntjjre,  3  Code  E.,  164  ;  5 
How.  Pr.,  117  ;   Tai/Ior  v.  Corbiere,  8  ib.,  385. 

2.  A  notice  served  on  Saturday  for  Monday,  is  not  a  notice  of  two  days. —  Whipple 
V.  Williams,  4  How.  Pr.,  28. 

531.  An  affidavit,  notice,  or  other  paper,  without  the  title  of  the 
action  or  proceeding  in  which  it  is  made,  or  with  a  defective  title,  shall 
be  as  valid  and  effectual  for  any  purpose,  as  if  duly  entitled,  if  it  in- 
telligibly refer  to  such  action  or  proceeding. 

See  note  to  Sec.  517. 

1.  On  a  motion  to  vacate  an  order,  where  the  affidavits  intelligibly  refer  to  the  ac- 
tion, an  objection  that  the  affidavits  arc  entitled  in  the  wrong  court  will  be  disregarded. 
Blake  v.  Loc)i,  1  Code  R.,  N.  S.,  406. 

532.  When  a  cause  of  action  has  arisen  in  another  state,  or  in  a 
foreign  country,  and  by  the  laws  thereof  an  action  thereon  cannot 
there  be  maintained  against  a  person  by  reason  of  the  lapse  of  time, 
an  action  thereon  shall  not  be  maintained  against  him  in  this  state, 
except  in  favor  of  a  citizen  thereof,  who  has  held  the  cause  of  action 
from  the  time  it  accrued. 


234  PROCEEDINGS    IN   JUSTICES'    COURTS.  §533 


TITLE    XVI. 

OP   PROCEEDINGS   IN    CIVIL   CASES   IN   JUSTICES'    COURTS. 

CHAPTER  I. 

OF   THE   PARTIES   AND   THE   TIME   AND    PLACE    OF   COMMENCING 
ACTIONS   IN   justices'    COURTS. 

y   0'^/  /)       533.     The  provisions  of  title  ojie  of  this  act,  as  to  parties  to  actions, 
■ shall  be  appHcable  to  actions  of  which  a  justice's  court  has  jurisdiction. 

^  534.     Parties  injustices'  courts  maj  prosecute  or  defend  in  person, 

!j)  5^3 '      or  by  attorney  ;  and  any  person,  on  the  request  of  a  party,  may  act  as 

his  attorney,  except  that  the  constable  by  whom  the  summons  or  jury 

process  was  served,  shall  not  appear  or  act  on  the  trial  in  behalf  of 

either  party. 

535.  [1853.]  No  person  shall  be  held  to  answer  to  any  summons 
issued  against  him  from  a  justice's  court,  in  a  civil  action,  in  any 
township  or  city  other  than  the  one  in  which  he  shall  reside,  except  in 
the  cases  following : 

1st.  When  there  shall  be  no  justice's  com-t  for  the  township  or  city 
in  which  the  defendant  may  reside,  or  no  justice  competent  to  act  on 
the  case  ; 

2d.  When  two  or  more  persons  shall  be  jointly,  or  jointly  and  seve- 
rally bound  in  any  debt  or  contract,  or  otherwise  jointly  liable  in  the 
same  action,  and  reside  in  difterent  townships  or  different  cities  of  the 
same  county,  or  in  different  counties,  the  plamtiff  may  prosecute  his 
action  in  a  justice's  court  of  the  township  or  city  in  which  any  of  the 
debtors  or  other  persons  liable  may  reside  ; 

3d.  In  cases  of  injury  to  the  person,  or  to  real  or  personal  property, 
the  plaintiff  may  prosecute  his  action  in  the  township  or  city  where  the 
injury  was  committed  ; 

4th.  When  personal  property  unjustly  taken  or  detained  is  claimed, 
or  damages  therefor  are  claimed,  the  plaintiff  may  lu-ing  his  action  in 


§538  PROCEEDINGS    IN   JUSTICES'    COURTS.  235 

any  township  or  city  in  wliich  the  property  may  be  found,  or  in  which 
the  property  was  taken  ; 

5th.  When  the  defendant  is  a  non-resident  cf  the  county,  he  may 
be  sued  in  any  township  or  city  Avherein  he  may  be  found ; 

6th.  When  a  person  has  contracted  to  perform  any  obhgation  at  a 
particular  place,  and  resides  in  another  township  or  city,  he  may  be 
sued  in  the  township  or  city  in  which  such  obligation  is  to  be  per- 
formed, or  in  which  he  resides  ; 

7th.  AVhen  the  foreclosure  of  a  mortgage  or  the  enforcement  of  a 
lien  upon  personal  property  is  sought  l)y  the  action,  the  plaintiif  may 
sue  in  the  township  or  city  where  the  property  is  situated ; 

8th.  Any  person  or  persons  residing  in  the  city  of  San  Francisco, 
may  be  held  to  answer  to  any  summons  issued  against  him  or  them 
from  the  court  of  a  justice  for  any  township  within  the  corporate  limits 
of  the  city  of  San  Francisco,  in  any  action  or  proceeding  whereof  jus- 
tices of  the  peace  of  the  city  or  county  of  San  Francisco  have  or  may 
have  jurisdiction  by  law  ;  provided,  nothing  herein  shall  be  construed 
to  allow  any  justice  of  said  city  or  county  to  hold  a  court  in  any  other 
township  than  the  one  for  which  he  shall  have  been  elected. 

536.  Judgment  upon  confession  maybe  entered  up  in  any  justice's 
court  in  the  state,  specified  in  the  confession. 

1.  A  confession  for  an  amount  exceeding  the  jurisdiction,  is  a  nullity. —  Grisimld  v. 
Sheldon,  1  Code  E.,  N.  S.,  261  ;  Daniels  v.  Hinkston,  5  How.  Pr.,  322  ;  Fillrrt  v.  En- 
gler,  7  Cal.,  July  T. 

2.  A  confession  of  judgment  before  a  justice  who  is  father-in-law  to  the  plaintiff,  is 
illegal  on  the  ground  of  relationship. —  Chapin  v.  Churchill,  12  How.  Pr.,  367. 

537.  Justices'  courts  shall  have  jurisdiction  of  an  action  upon  the 
voluntary  appearance  of  the  parties  without  summons,  without  regard 
to  their  residences,  or  the  place  where  the  cause  of  action  ai'ose,  or 
the  subject  matter  of  the  action  may  exist. 


CHAPTER  II. 

SUiMMONS,    ARREST,    ATTACHMENT   AND    CLAIM    OF    PERSONAL 
PROPERTY. 

538.     Actions  in  justices'  courts  shall  be  commenced  by  filing  a 


236  SUMMONS  IN  justices'  courts.  §539 

copy  of  the  account,  note,  bill,  bond,  or  instrument  upon  ■Rliicli  the 
action  is  brought,  or  a  concise  statement  in  -svriting  of  the  cause  of  ac- 
tion, and  the  issuance  of  a  summons  thereon,  or  by  the  voluntary  ap- 
pearance and  pleadings  of  the  parties  without  summons.  In  the  latter 
case  the  action  shall  be  deemed  commenced  at  the  time  of  appearance. 

539.  When  a  guardian  is  necessary,  he  shall  be  appointed  by  the 
justice,  as  follows : 

1st.  If  the  infant  be  plaintiff,  the  appointment  shall  be  made  be- 
fore the  summons  is  issued,  upon  the  application  of  the  infant,  if  he  be 
of  the  age  of  fourteen  years  or  upwards  ;  if  under  that  age,  upon  the 
application  of  some  relative  or  friend.  The  consent  in  writing  of  the 
guardian  to  be  appointed,  and  to  be  responsible  for  costs,  if  he  fail  in 
the  action,  shall  be  first  filed  with  the  justice. 

2d.  If  the  infant  be  defendant,  the  guardian  shall  be  appointed  at 
the  time  the  summons  is  returned,  or  before  the  pleadings.  It  shall 
be  the  right  of  the  infant  to  nominate  his  own  guardian,  if  the  infant 
be  over  fourteen  years  of  age,  and  the  proposed  giiardian  be  present 
and  consent  in  writing  to  be  appointed.  Otherwise,  the  justice  may 
appoint  any  suitable  person  who  gives  such  consent. 

540.  The  summons  shall  be  addressed  to  the  defendant  by  name, 
or  if  his  name  be  unknown,  by  a  fictitious  name  ;  and  shall  summon 
him  to  appear  before  the  justice  at  his  office,  naming  its  township  or 
city,  and  at  a  time  specified  therein,  to  answer  the  complaint  of  the 
plaintiff,  for  a  cause  of  action  therein  described,  in  general  terms,  suf- 
ficient to  apprise  the  defendant  of  the  nature  of  the  claim  against  him  ; 
and  in  an  action  for  money  or  damages,  shall  state  the  amount  for 
which  the  plaintiff  will  take  judgment,  if  the  defendant  fail  to  appear 
and  answer.  It  shall  be  subscribed  by  the  justice  before  whom  it  is 
returnable. 

541.  [1854.]  The  time  mentioned  in  the  summons  for  the  appear- 
ance of  the  defendant  and  the  time  of  service  shall  be  as  follows: 

1st.  When  the  summons  is  accompanied  Avith  an  order  to  arrest  the 
defendant,  it  shall  be  returnable  immediately  ; 

2d.  AVhen  the  defendant  is  not  a  resident  of  the  townshi])  or  city, 
or  when  the  plaintiff  is  not  a  resident,  it  shall  be  returnable  not  more 
than  two  days  from  its  date,  and  shall  be  served  at  least  one  day  before 
the  time  for  appearance. 


§543  SUMMONS  IN  justices'  courts.  237 

Sd.  In  all  other  cases,  it  shall  be  returnahle  hi  not  less  than  two, 
nor  more  than  ten  days  from  its  date,  and  shall  be  served  at  least  two 
days  before  the  time  for  appearance. 

1.  3d.  A  summons  issued  on  February  3d  and  returnable  on  tlic  14tli,  is  ifregular, 
being  more  than  ten  days. — DeidesJieimer  v.  Brown,  7  Cal.,  Oct.  T. 

542.  The  summons  shall  be  served  by  the  sheriif  or  a  constable  of 
the  county,  as  follows : 

1st.  If  the  action  be  against  a  corporation,  by  a  delivery  of  a  copy 
to  the  president  or  other  head  of  the  corporation,  or  to  the  secretary, 
cashier  or  managing  agent  thereof ;  or  when  no  such  officer  resides  in 
the  county,  to  a  director  resident  therein  ; 

2d.  If  against  a  minor  under  the  age  of  fourteen  years,  by  delivery 
of  a  copy  to  such  minor,  and  also  to  his  father,  mother,  or  guardian  ; 
or  if  there  be  none  within  the  county,  then  to  any  person  having  the 
care  or  control  of  such  minor,  or  with  Avhom  he  resides,  or  in  whose 
service  he  is ; 

3d.  If  against  a  person  judicially  declared  to  be  of  unsound  mind, 
or  incapable  of  conducting  his  own  affairs,  and  for  whom  a  guardian 
has  been  appointed,  by  delivery  of  a  copy  to  such  guardian  ; 

4th.  In  all  other  cases,  by  delivery  of  a  copy  to  the  defendant 
personally. 

1.  The  constable  may  appoint  deputies. — Tai/Ior  v.  Brown,  4  Cal.,  188. 

2.  To  give  a  justice  jurisdiction  and  to  authorize  him  to  render  judgment  against 
an  absent  defendant,  there  must  be  a  return  showing  personal  service  of  process. — 
Manning  v.  Johnson,  7  Barb.,  457. 

3.  The  return  of  a  constable  certifying  the  time  and  manner  of  his  serving  a  sum- 
mons upon  the  defendant,  is  presumptive  evidence  of  what  it  states. —  Wheeler  v.  New 
York  ^'  Harlem  R.  R.  Co.,  24  Barb.,  414. 

543.  [1854.]  When  the  person  upon  whom  the  service  is  to  be 
made  resides  out  of  the  state,  or  has  departed  from  the  state,  or  can- 
not, after  due  diligence,  be  found  within  the  state,  or  conceals  himself 
to  avoid  the  service  of  summons,  and  the  fact  shall  appear,  by  affida- 
vit, to  the  satisfaction  of  the  justice,  and  it  shall,  in  like  manner,  ap- 
pear that  a  cause  of  action  exists  against  the  defendant  in  respect  to 
whom  the  service  is  to  be  riiade,  the  justice  shall  grant  an  order  that 
the  service  be  made  by  the  publication  of  the  summons.  The  order 
shall  direct  the  publication  to  be  made  in  a  newspaper,  to  be  designat- 
ed as  most  likely  to  give  notice  to  the  person  to  be  served,  and  for 
such  length  of  time  as  may  be  deemed  reasonable,  at  least  one  week  : 


238  ARREST  IX  justices'    COURTS.  §544 

provided,  that  a  publication  against  a  defendant  residing  out  of  the 
state  or  absent  therefrom,  shall  not  be  less  than  three  months.  The 
service  of  summons  shall  be  deemed  complete  at  the  expiration  of  the 
time  prescribed  by  the  order  of  publication ;  the  justice  shall  also  di- 
rect a  copy  of  the  summons  to  be  forthwith  deposited  in  the  post  office, 
directed  to  the  person  to  be  served,  at  hi^  place  of  residence. 

5-44.  An  order  to  arrest  the  defendant  may  be  endorsed  on  a  sum- 
mons issued  by  the  justice,  and  the  defendant  may  be  arrested  thereon 
by  the  sheriff  or  constable,  at  the  time  of  serving  the  suuj^ons,  and 
brought  before  the  justice,  and  there  detained  until  duly  discharged 
in  the  following  cases,  arising  after  the  passage  of  this  act : 

1st.  In  an  action  for  the  recovery  of  money  or  damages,  on  a  cause 
of  action  arising  upon  contract,  express  or  imphed,  when  the  defend- 
ant is  about  to  depart  from  the  state,  with  intent  to  defraud  his  cred- 
itors ;  or  where  the  action  is  for  a  willful  injury  to  the  person,  or  for 
taking,  detaining  or  injuring  personal  property  ; 

2d.  In  an  action  for  a  fine  or  penalty,  or  for  money  or  property  em- 
bezzled, or  fraudulently  misapplied,  or  converted  to  his  own  use  by  an 
attorney,  factor,  broker,  agent  or  clerk,  in  the  course  of  his  employ- 
ment as  such,  or  by  any  other  person  in  a  fiduciary  capacity ; 

3d.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt,  or  incurring  the  obligation  for  which  the  action  is  brought ; 

4th.  When  the  defendant  has  removed,  concealed,  or  disposed  of 
his  property,  or  is  about  to  do  so,  with  intent  to  defraud  his  creditors. 
But  no  female  shall  be  arrested  in  any  action. 

1.  The  provisions  of  arrest  for  willful  injury  to  person  or  character,  arc  in  conflict 
with  the  constitution. — Ex  parte  Pradcr,  6  Cal.,  239. 

2.  If  the  warrant  is  not  valid  on  its  face,  the  justice  who  issues  and  the  ofticcrs  who 
execute  it,  are  liable  to  the  jiarty  arrested. —  Willitims  v.  Garrett,  12  How.  Pr.,  456. 

54.").  Before  an  order  for  an  arrest  shall  be  made,  the  party  applying 
sl^jill  prove  to  the  satisfaction  of  the  justice,  by  the  affidavit  of  himself 
or  some  other  person,  the  facts  on  which  the  application  is  founded. 
The  plaintiff  shall  also  execute  and  dehver  to  the  justice  a  written  un- 
dertaking, with  two  or  more  sureties,  to  the  effect  that  if  the  defendant 
recover  judgment,  the  i)laiiitiff  will  pay  to  him  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  arrest,  not  exceeding  tlic  sura  specified  in  the  undertak- 
ing, which  shall  be  at  least  two  hundred  dollars. 


§550  ARREST   IX  justices'    COURTS.  239 

546.  The  defendant,  immediately  upon  being  arrested,  shall  be 
taken  to  the  office  of  the  justice  who  made  the  order,  and  if  he  be  ab- 
sent or  unable  to  try  the  action,  or  if  it  be  made  to  appear  to  him  by 
the  affidavit  of  the  defendant,  that  he  is  a  material  witness  in  the  ac- 
tion, the  officer  shall  immediately  take  the  defendant  before  the  next 
justice  of  the  city  or  township,  who  shall  take  cognizance  of  the  action, 
and  proceed  thereon,  as  if  the  summons  had  been  issued  and  the  order 
of  arrest  made  by  him. 

Sec  Sec.  582. 

547.  The  officer  making  an  arrest  shall  immediately  give  notice 
thereof  to  the  plaintiff,  or  his  attorney  or  agent,  and  endorse  on  the 
summons,  and  subscribe  a  certificate,  stating  the  time  of  serving  the 
same,  the  time  of  the  arrest,  and  of  his  giving  notice  to  the  plaintiff. 

548.  The  officer  making  the  arrest  shall  keep  the  defendant  in 
custody  until  duly  discharged  by  order  of  the  justice. 

549.  The  defendant  under  arrest,  on  his  appearance  with  the 
officer,  may  demand  a  trial  immediately  ;  and  upon  such  demand  be- 
ing made,  the  trial  shall  not  be  delayed  beyond  three  hours,  except  by 
the  trial  of  another  action  pending  at  the  time  ;  or  he  may  have  an  ad- 
journment, and  be  discharged  on  giving  bail,  as  provided  in  the  next 
section.  An  adjournment  at  the  request  of  the  plaintiff,  beyond 
three  hours,  shall  discharge  the  defendant  from  arrest,  but  the  action 
may  proceed,  notwithstanding ;  and  the  defendant  shall  be  subject  to 
arrest  on  the  execution  in  the  same  manner  as  if  he  had  not  been  so 
discharged. 

See  Sec.  582. 

550.  If  the  defendant  on  his  appearance  demand  an  adjournment, 
the  same  shall  be  granted  on  condition  that  he  execute  and  file  with 
the  justice  an  undertaking,  with  two  or  more  sufficient  sureties,  to  be 
approved  by  the  justice,  to  the  effect  that  he  will  render  himself 
amenable  to  the  process  of  the  court  during  the  pendency  of  the  ac- 
tion, and  such  as  may  be  issued  to  enforce  the  judgment  therein  ;  or 
that  the  sureties  will  pay  to  the  plaintiff  the  amount  of  any  judgment 
which  he  may  recover  in  the  action.     On  filing  the  undertaking  speci- 


5,r^'- 


$ 


240  ATTACHMENT    IN    JUSTICES'    COURTS.  §551 

fied  in  this  section,  the  justice  shall  order  the  defendant  to  be  dis- 
charged from  custody. 

/  ^/j         ^^1*     [1858.]  In  an  action  upon  a  conti-act,  express  or  implied, 

'^ made  after  the  passage  of  this  act,  for  the  direct  payment  of  money, 

which  contract  is  made  or  payable  in  this  state,  and  is  not  secured  by 
mortgage  upon  real  or  personal  property,  the  plaintiff,  at  the  time  of 
issuing  the  summons,  or  at  any  tim^  afterwards,  may  have  the  pro}> 
erty  of  the  defendant  attached*«(ssecurity  for  the  satisfaction  of  any 
judgment  that  may  be  recovered,  unless  the  defendant  give  security 
to  pay  such  judgmefft,  in  all  cases  specified  in  section  one  hundred  and 
twenty  of  this  act  (a). 

552.  [1858.]  A  writ  to  attach  the  property  of  the  defendant  shall 
be  issued  by  the  justice,  on  receiving  an  affidavit  by  or  on  behalf  of 
the  plaintiff,  showing  the  same  facts  as  are  required  to  he  shotvn  by  the 
affidavit  specified  in  section  one  hundred  and  tiventy-one  of  this  act  (a) . 

1.  This  section  was  not  amended  so  as  to  authorize  an  attachment  upon  a  contract 
madepriortothepassagcof  this  act,  or  against  non-residents,  as  in  Sec.  120,  prior  to  1858. 

/  C^/ A  553.  [1858.]  Before  issuing  the  writ,  the  justice  shall  re(|uire  a 
-^^-^  written  undertaking  on  tjie  part  of  the  plaintiff,  with  two  or  more  suffi- 
cient sureties,  to  the  effect  that,  if  the  defendant  recover  judgment,  or 
if  the  attachment  he  dismissed,  the  plaintiff  will  pay  all  costs  that  may 
be  awarded  to  the  defendant,  and  all  damages  Avhich  he  may  sustain 
by  reason  of  the  attachment  (a). 

•^'j'i  1.     Proceedings  on  an  attaciimcnt  bond  are  void,  if  the  justice  takes  the  bond  in  an 

amount  exceeding  his  jurisdiction. — Binedict  v.  Bray,  2  Cal.,  251. 

554.  The  writ  may  be  directed  to  the  sheriff  or  any  constable  of 
the  county,  and  shall  require  him  to  attach  and  safely  keep  all  the 
property  of  the  defendant  in  his  county,  not  exempt  from  execution, 
or  so  much  thereof  as  maybe  sufficient  to  satisfy  the  plaintiff's  demand, 
the  amount  of  which  shall  be  stated  in  conformity  with  the  complaint, 
unless  the  defendant  give  him  security  by  the  undertaking  of  two  suf- 
ficient sureties,  in  an  amount  sufficient  to  satisfy  such  demand  besides 
costs  ;  in  which  case,  to  take  such  undertaking. 

(u)  This  amendment  goes  into  eflect  after  July  1st,  1858. 


I 


§5.59  ATTACHMENT   IN   JUSTICES'    COURTS.  241 

555.  The  sc(3i^ns  of  this  act,  from  section  one  hundred  and  twenty- 
four,  to  section  one  hundred  and  forty-one,  both  inchisive,  shall  be  ap- 
plicable to  attachments  issued  injustices'  courts,  the  word  "  constable" 
being  substituted  for  the  -word  "  sheriff,"  whenever  the  writ  is  directed 
to  a  constable,  and  the  -vTbrd  "justice"  being  substituted  for  the  word 
"judge." 

556.  The  plaintiff  in  an  action  to  recover  the  possession  of  personal 
property,  may,  at  the  time  of  issuing  the  summons,  or  at  any  time 
before  answer,  claim  the  delivery  of  such  property  to  him,  as  provided 
in  this  chapter. 

557.  When  a  delivery  is  claimed,  an  affidavit  shall  be  made  by  the 
plaintiff,  or  by  some  one  in  his  behalf,  showing : 

1st.  That  the  plaintiff  is  the  owner  of  the  property  claimed,  (par- 
ticularly describing  it,)  or  is  lawfully  entitled  to  the  possession  thereof; 

2d.  That  the  property  is  wrongfully  detained  by  the  defendant ; 

8d.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best 
information  and  belief; 
the  same  has  not  been  taken  for  a  tax,  assessment,  or 
fiTie,  purs'uant  to  statute,  or  seized  under  an  execution  or  an  attach- 
mentligainst  the  property  of  the  plaintiff,  or^if  seized,  that  it  is  by 
statute  exempt  from  such  seizure  ;  and, 

5th.  The  actual  value  of  the  property. 

558.  The  justice  shall  thereupon,  by  an  endorsement  in  writing 
upon  the  affidavit,  order  the  sheriff  or  a  constable  of  the  county,  to  take 
the  same  from  the  defendant,  and  deliver  it  to  the  plaintiff,  upon  re- 
ceiving the  undertaking  mentioned  in  the  following  section. 

1.  This  section  has  not  been  amended  so  as  to  give  tlie  party  or  his  attorney,  the 
authority  to  require  the  takingof  the  property  as  in  Sec.  101. 

559.  Upon  the  receipt  of  the  affidavit,  and  order,  with  a  written 
undertaking,  executed  by  two  or  more  sufficient  sureties,  approved  by 
the  officer,  to  the  effect  that  they  are  bound  in  double  the  value  of  the 
property  as  stated  in  the  affidavit  for  the  prosecution  of  the  action,  for 
the  return  of  the  property  to  the  defendant  if  return  thereof  be  ad- 
judged, and  for  the  payment  to  him  of  such  sum,  as  may,  for  any 
cause,  be  recovered  against  the  plaintiff,  the  officer  shall  fortLwith  take 


6a.  Tiie  ai 
'knoAn'fe^^,  in 


242  REPLEVIN   IN  justices'    COURTS.  §5G0 

the  property  described  in  the  affidavit,  if  it  be  in  ppssession  of  the  de- 
fendant, or  his  agent,  and  retain  it  in  his  custody.  He  sliall  also, 
without  delay,  serve  on  the  defendant  a  copy  of  the  affidavit,  order 
and  undertaking,  by  delivering  the  same  to  him  personally  if  he  can 
be  found  witliin  the  county,  or  to  his  agent  from  whose  possession  the 
property  is  taken,  or  if  neither  can  be  found  within  the  county,  by 
leaving  them  at  the  usual  place  of  abode  of  either  within  the  county, 
with  some  person  of  suitable  age  and  discretion,  or  if  neither  have  any 
known  place  of  abode  within  the  county,  by  putting  them  into  the 
nearest  post-office  directed  to  the  defendant. 

560.  The  defendant  may,  within  two  days  after  the  service  of  a 
copy  of  the  affidavit  and  undertaking,  give  notice  to  the  officer  that  he 
excepts  to  the  sufficiency  of  the  sureties  ;  if  he  fails  to  do  so,  he  shall 
be  deemed  to  have  Avaived  all  objection  to  them.  When  the  defendant 
excepts,  the  sureties  shall  justify  on  notice  before  the  justice  ;  and  the 
officer  shall  be  responsible  for  the  sufficiency  of  the  sureties  until  the 
objection  to  them  is  either  waived  as  above  provided,  or  until  they 
justify.  If  the  defendant  except  to  the  sureties,  he  cannot  reclaim 
the  property  as  provided  in  the  next  section. 

561.  At  any  time  before  the  delivery  of  the  property  to  the  plain- 
tiff, the  defendant  may,  if  he  do  not  except  to  the  sureties  of  the 
plaintiff,  re(iuire  the  return  thereof,  upon  giving  to  the  officer  a  written 
undertaking  executed  by  two  or  more  sufficient  sureties,  to  the  effect 
that  they  are  bound  in  double  the  value  of  the  property,  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if 
such  delivery  be  adjudged,  and  for  the  payment  to  him  of  such  sum 
as  may  for  any  cause  be  recovered  against  the  defendant.  If  a  return 
of  the  property  be  not  so  reijuircd  within  two  days  after  the  taking  and 
service  of  notice  to  the  defendant,  it  shall  be  delivered  to  the  plaintiff, 
except  as  provided  in  this  chapter. 

562.  The  defendant's  sureties,  upon  reasonable  notice  to  the  plain- 
tiff, shall  justify  before  the  justice  ;  and  upon  such  justification,  the 
officer  shall  deliver  the  pro})erty  to  the  defendant.  The  officer  shall 
be  responsible  for  the  defendant's  sureties  until  they  justify,  or  until 
the  justification  is  completed  or  expressly  waived,  and  may  retain  the 
property  until  that  time  ;  but  if  they,  or  others  in  their  place,  fail  to 


§507  KEPLEVIN  IN  justices'  COURTS.  243 

justify  at   the  time  appointed,  he  shall  deliver  the  property  to  the 
plamtiff. 

563.  If  the  property  or  any  part  thereof,  be  concealed  in  a  l)uild- 
ing  or  enclosure,  the  officer  shall  publicly  demand  its  delivery,  and  if 
it  1)0  not  delivered,  he  shall  cause  the  building  or  enclosure  to  be  brok- 
en open,  and  take  the  property  into  his  possession. 

564.  When  the  officer  shall  have  taken  property,  as  in  this  chapter 
provided,  he  shall  keep  it  in  a  secure  place,  and  dehver  it  to  the  party 
entitled  thereto,  upon  receiving  his  lawful  fees  for  taking,  and  his  nec- 
essary expenses  for  keeping  the  same. 

565.  If  the  property  taken  be  claimed  by  any  other  person  than 
the  defendant  or  his  agent,  and  such  person  make  affidavit  of  his  title 
thereto,  or  right  to  the  possession  thereof,  stating  the  grounds  of  such 
title  or  right,  and  serve  the  same  upon  the  officer,  the  officer  shall  not 
be  bound  to  keep  the  property,  or  deliver  it  to  the  plaintiff,  unless  the 
plaintiff,  on  demand  of  him  or  his  agent,  indemnify  the  officer  against 
such  claim,  l)y  an  undertaking  executed  by  two  sufficient  sureties,  ac- 
companied by  their  affidavits  that  they  are  each  worth  double  the  value 
of  the  property  as  specified  in  the  affidavit  of  the  plaintiff,  over  and 
above  their  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution,  and  are  freeholders  or  householders  of  the  county  ;  and  no 
claim  to  such  property  by  any  other  person  than  the  defendant  or  his 
agent  shall  be  valid  against  the  officer,  unless  so  made. 

56Q.  The  officer  shall  return  the  order  and  affidavit,  with  his  pro- 
ceedings thereon,  to  the  justice,  within  five  days  after  taking  the 
property  mentioned  therein. 

567.  The  qualification  of  sureties  on  the  several  undertakings  re- 
quired by  this  chapter,  shall  be  as  follows  : 

1st.  Each  of  them  shall  be  a  resident  and  householder,  or  free- 
holder, within  the  county ; 

2d.  Each  shall  be  worth  double  the  amount  stated  in  the  undertak- 
ing over  and  above  all  his  debts  and  liabilities,  exclusive  of  property 
exempt  from  execution. 


244  PLEADINGS    AND    TRIAL.  §568 

568.  For  the  purpose  of  justification,  each  of  the  sureties  shall  at- 
tend before  the  justice  at  the  time  mentioned  in  the  notice,  and  may 
be  examined  on  oath,  on  the  part  of  the  adverse  party,  toucliing  his 
sufficiency,  in  such  manner  as  the  justice,  in  his  discretion,  may  think 
proper.  The  examination  shall  be  reduced  to  writing  and  subscribed 
by  the  sureties,  if  required. 

569.  If  the  justice  find  the  sureties  sufficient,  he  shall  annex  the 
examination  to  the  undertaking,  endorse  his  allowance  thereon,  and 
file  the  same,  and  the  officer  shall  thereupon  be  exonerated  from 
liabihty. 


CHAPTER  III. 

PLEADINGS   AND    TRIAL. 

570.  The  pleadings  in  justices'  courts  shall  be  : 

1st.  The  complaint  by  the  plaintiff  stating  the  cause  of  action ; 
2d.  The  answer  by  the  defendant,  stating  the  ground  of  the  defense. 

571.  The  pleading  shall  be  in  writmg,  and  verified  by  the  oath  of 
the  party,  his  agent  or  attorney,  when  the  action  is  : 

1st.  For  the  foreclosure  of  any  mortgage  or  the  enforcement  of  any 
lien  on  personal  property  ; 

2d.  For  a  forcible. or  unlawful  entry  upon,  or  a  forcible  or  unlawful 
detention  of  lands,  tenements,  or  other  possessions  ; 

3.  To  recover  possession  of  a  "  minmg  claim."  In  other  cases  the 
pleading  may  be  oral  or  in  writing. 

1.  2d.  Tlie  rule  tliat  a  penal  statute  must  be  declared  upon  by  the  i)arty  seeking  re- 
covery under  it,  docs  not  apply  to  pleadings  in  a  justice's  court. — 0'  Callar/han  v.  Booth, 
f)  Cal.,  63  ;  Hart  v.  Moon,  \h..  IGl. 

2.  This  jurisdiction  is  not  uncoiistitutionaL — lb. 

572.  When  the  pleadings  are  oral,  the  substance  of  them  sl»all  be 
entered  by  the  justice  in  his  docket ;  when  in  writing,  they  shall  be 
filed  in  his  office,  and  a  reference  made  to  them  in  the  docket.  Plead- 
ings shall  not  be  required  to  be  in  any  particular  form,  but  shall  be 
such  as  to  enable  a  person  of  common  understandmg  to  know  what  is 
intended. 


§577  PLEADINGS  AND  TKIAL.  245 

1 .     It  is  not  tlie  i>olicy  of  the  law  to  confine  parties  to  any  nice  strictness  in  pleadinfr. 

Cronisev.  Canjldll,  4  Cal.,  120. 

e 

573.  The  complaint ^hall  state  in  a  plain  and  direct  manner,  the 
facts  constitutmg  the  cause  of  action. 

574.  The  answer  may  contain  a  denial  of  any  of  the  material  facts 
stated  in  the  complaint,  which  the  defendant  believes  to  be  untrue,  and 
also  a  statement,  in  a  plain  and  direct  manner,  of  any  other  facts  con- 
stituting a  defense,  or  a  counter  claim  upon  which  an  action  may  be 
brought  by  the  defendant  against  the  plaintifi'  in  a  justice's  court. 

1.  The  objection  to  the  jurisdiction  on  tlie  ground  of  excess  of  vahie  of  the  subject 
in  controversy,  is  properly  taken  by  answer,  and  should  be  determined  before  proceed- 
ing to  hear  the  merits  of  the  action. — Small  v.  Gwinn,  6  Cal.,  447. 

575.  A  statement  in  an  answer  that  the  party  has  not  sufficient 
knowledge  or  information,  in  respect  to  a  particular  allegation  in  the 
previous  pleading  of  the  adverse  party  to  form  a  belief,  shall  be  deemed 
equivalent  to  a  denial. 

576.  When  the  cause  of  action  or  counter  clailli  arises  upon  an  ac- 
count or  instrument  for  the  payment  of  money  only,  it  shall  be  suffi- 
cient for  the  party  to  deliver  a  copy  of  the  account  or  instrument  to 
the  court,  and  to  state  that  there  is  due  to  him  thereupon,  from  the 
adverse  party,  a  specified  sum,  which  he  claims  to  recover  or  set-off. 
The  court  may,  at  the  time  of  the  pleading,  require  that  the  original 
account  or  instrument  be  exhibited  to  the  inspection  of  the  adverse 
party,  and  a  copy  to  be  furnished  ;  or  if  it  be  not  so  exhibited  and  a  copy 
furnished,  may  prohibit  its  being  afterwards  given  in  evidence. 

1.  Where,  in  an  action-  on  contract,  the  plaintiff  recovers  less  then  fifty  [S200]  dol- 
lars, but  extinguishes  a  counter  claim  set  up  in  the  answer  which  exceeds  that  amount, 
neither  party  is  entitled  to  costs. — Kalt  v.  Litjnot,  3  Abbott,  33,  190. 

577.  [1854.]  If  the  plaintiff  annex  to  his  complaint,  or  file  with 
the  justice  at  the  time  of  issuing  the  summons,  a  copy  of  the  promis- 
sory note,  bill  of  exchange,  or  other  written  obligation  for  the  payment 
of  money,  upon  which  the  action  is  brought,  the  defendant  shall  be 
deemed  to  admit  the  genuineness  of  the  signatures  of  the  makers,  en- 
dorsers, or  assignors  thereof,  unless  he  specifically  deny  the  same  in 
his  answer,  and  verify  the  answer  by  his  oath. 


246  PLEADINGS    AND    TRIAL.  §578 

578.  Either  party  may  object  to  a  pleading  of  his  adversary,  or  to 
any  part  thereof,  that  it  is  not  sufficiently  explicit  to  enable  him  to  un- 
darstand  it,  or  that  it  contains  no  cause  of  action  or  defense,  although 
it  be  taken  as  true.  If  the  court  deem  the  objection  well  founded,  it 
shall  order  the  pleading  to  be  amended,  and  if  the  party  refuse  to 
amend,  the  defective  pleading  shall  be  disregarded. 

1.  On  demurrer  to  a  complaint  in  an  action  in  a  justice's  court,  if  the  olyection  is 
acenied  well  taken,  the  judge  should  order  the  pleading  to  be  amended,  and  if  it  is  not 
amended,  should  disregard  it. —  Glasse  v.  Keiilsen,  3  Ahbe^tt,  100. 

579.  A  variance  between  the  proof  on  the  trial  and  the  allegations 
in  a  pleading,  shall  be  disregarded  as  immaterial,  unless  the  court  be 
satisfied  that  the  adverse  party  has  been  misled  to  his  prejudice 
thereby. 

580.  "The  pleadings  may  be  amended  at  any  time  before  the  trial, 
to  supply  a  deficiency  or  omission,  when  by  such  amendment  substan- 
tial justice  will  be  promoted.  If  the  amendment  be  made  after  the 
issue,  and  it  be  made  to  appear  to  the  satisfaction  of  the  court,  by 
oath,  thati  an  aj^ouAment  is  necessary  to  the  adverse  party  in  conse- 
(juence  of  such  amendment,  an  adjournment  shall  be  granted.  The 
court  may  also,  in  its  discretion,  require  as  a  condition  of  an  amend- 
ment, the  payment  of  costs  to  the  adverse  party,  to  be  fixed  by  the 
court,  not  exceeding  twenty  dollars ;  but  such  payment  shall  not  be 
required  unless  an  adjournment  is  made  necessary  by  the  amendment ; 
nor  shall  an  amendment  be  allowed  after  a  witness  is  sworn  on  the 
trial,  Avhen  an  adjournment  thereby  will  be  made  necessary. 

1.  In  an  action  in  a  justice's  court  after  the  defendant  had  commenced  his  proofs, 
the  cause  was  adjourued  by  consent.  On  the  adjourned  day  the  plaintitt'  failed  to  ap- 
pear;  the  justice  however  proceeded  with  the  cause,  and  rendered  judgment  for  the  de- 
fendant upon  his  counter  claim,  held  that  the  justice  erred  in  proceeding  wjth  the  action. 
The  only  judgment  proper  in  such  cases  is  judgment  of  nonsuit  or  dismissal. — Noiris 
V.  Bleaklcy,  3  Abbott,  107. 

2.  AVhcrc  in  a  justice's  court,  after  the  justice  had  called  his  cases,  a  defendant  who 
was  in  waiting  asked  iiis  cause  to  be  called,  and  was  informed  that  there  was  no  such 
cause,  whercu]>on  he  left  the  court,  held  tiiat  the  justice  could  not  afterwards  proceed 
with  the  cause  in  defendant's  absence. — Murliiif/ v.  Grute,  ib.,  109. 

3.  Where  a  justice  adjourned  a  cause  with  provision  that  if  defendant  filed  security 
meantime,  he  should  then  have  a  further  adjournment,  and  defendant  filed  the  security 
but  failed  to  appear  on  the  adjourned  day,  held  that  the  justice  was  right  in  proceeding 
to  judgment. — Muhcrw  Held,  ib.,  110. 


§582  PLEADINGS    AND    TRIAL.  247 

4.  Wlicrc  an  action  is  oomnienccd  before  a  justice,  and  tlie  answer  of  defendant  in- 
terposes a  plea  of  title,  and  an  action  for  the  same  cause  is  commenced  in  an  upper 
court,  the  cause  must  he  governed  hy  the  rules  of  pleading  and  practice  by  which  otiier 
actions  are  conducted  in  this  court. — Jeicctt  v.  Jewett,  6  How.  Pr.,  185. 

581.  The  parties  shall  not  be  at  liberty  to  give  evidence  by  which 
the  question  of  title  to  real  property  shall  be  raised  on  the  trial  before 
a  justice;  and  if  it  appear  from  the  plaintiff's  own  showing  on  the 
trial,  or  from  the  answer  of  the  defendant,  verified  by  his  oath,  or  that 
of  his  agent  or  attorney,  that  the  determination  of  the  action  will 
necessarily  involve  the  decision  of  a  question  of  title  to  real  property, 
the  justice  shall  suspend  all  further  proceedings  in  the  action,  and  cer- 
tify the  pleadings  ;  or,  if  the  pleadings  be  oral,  a  transcript  of  the  same 
from  his  docket  to  the  district  court  of  the  county ;  and  from  the  time 
of  filing  such  pleadings  or  transcript  with  the  county  clerk,  the  district 
court  shall  have  over  the  action  the  same  jurisdiction  as  if  it  were 
originally  commenced  therein.  Provided,  that  when  the  pleadings  or 
transcript  are  certified  to  the  district  court  upon  the  answer  of  the 
defendant,  he  shall  file  an  undertaking  with  two  or  more  sufficient  sure- 
ties, to  be  approved  by  the  justice,  to  the  effect  that  they  will  pay  all 
costs  of  the  action,  if  it  be  decided  against  him  by  the  district  court. 

1.  Justices  of  the  peace  have  no  jurisdiction  to  try  a  cause  where  there  is  an  alleged  ') 
injury  arising  out  of  a  diversion  of  water  from  the  natural  or  artificial  channel  in  which 
it  is  conducted. — Hilly.  Newman,  5  Cal.,  445. 

2.  Justices  have  no  jurisdiction  in  actions  to  recover  damages  for  injury  to  a  mining  //  m 
claim,  or  for  its  detention. —  Van  Etten  v.  Jilson,  6  Cal.,  19.  ^^/f 

3.  Occupancy  of  a  reservation  by  Indians  is  a  title  upon  which  a  justice  of  the  peace 
cannot  pass  in  an  action. — Smith  v.  Mitten,  13  How.  Pr.,  325. 


%o  A^o'' 


582.  [1853.]  If  at  any  time  before  the  trial  it  appear,  to  the  sat- 
isfaction of  the  justice  before  whom  the  action  is  brought,  by  affidavit 
of  either  party,  that  such  justice  is  a  material  witness  for  either  party, 
or  if  either  party  make(affidavit  that  he  has  reason  to  believe,  and  does 
believe,  that  he  cannot  have  a  fair  and  impartial  trial  before  such  jus- 
tice, by  reason  of  the  interest,  prejudice,  or  bias  of  the  justice,  the 
action  shall  be  transferred  to  some  other  justice  of  the  same  or  neigli- 
boring  township ;  and  in  case  a  jury  be  demanded,  and  affidavit  of 
either  party  is  made,  that  he  cannot  have  a  fair  and  impartial  trial,  on 
account  of  the  bias  or  prejudice  of  the  citizens  of  the  township  against 
him,  the  action  shall  be  transferred  to  some  other  justice  of  the  peace 


248  PLEADINGS    AND    TRIAL.  §583 

in  tlie  countj.  The  justice  to  Avhom  an  action  may  be  transferred  by 
the  provisions  of  this  section,  shall  have  and  exercise  the  same  juris- 
diction over  the  action  as  if  it  had  been  originally  commenced  l)efore 
him.  The  justice  ordering  the  transfer  of  the  action  to  another  jus- 
tice, shall  immediately  transmit  to  the  latter,  on  payment  of  costs,  all 
the  papers  in  the  action,  together  with  a  certified  transcript  from 
his  docket,  of  the  proceedings  therein.  /     h>  /  ^■ 

Upon  the  return  day  of  the  summons,  if  a  jury  be  required,  or  if  the 
justice  be  actually  engaged  in  other  official  business,  he  may  adjourn 
the  trial  without  the  consent  of  either  party,  as  follows  : 

1st.  "When  a  party  who  is  not  a  resident  of  the  county  is  in  attend- 
ance, the  adjournment  not  to  exceed  twenty-four  hours  ;  when  the  de- 
fendant in  attendance  is  under  arrest,  the  adjournment  not  to  exceed 
three  hours  ; 

2d.  In  other  cases  not  to  exceed  five  days. 

See  See.  546. 

1.  "When  tlie  justice  is  interested  in  the  event  of  the  suit,  the  statute  requires  he 
shouUl  transfer  it  to  another  Justice. — Lame  v.  Gaslcbis,  5  Cal.,  507- 

2.  AVhere  the  phiintiff  discovers  that  the  justice  and  defendant  are  related,  and  on 
that  ground  withdraws  the  suit,  the  justice  cannot  render  judgment  for  his  costs. — Ran- 
dall V.  Halt,  Lalor's  sup]).,  2.39. 

^JUl,       X^U-Cytt^-^^  A  ^  ■  %  I  0 

583.  [1854.]  The  trial  may  be  adjourned  by  consent,  or  upon  ap- 
plication of  either  party,  Avithout  the  consent  of  the  other,  for  a  period 
not  exceeding  ten  days,  (except  as  provided  in  the  next  section,)  as 
follows : 

1st.  The  party  asking  the  adjournment  shall,  if  required  by  his  ad- 
versary, prove  by  his  own  oath,  or  otherwise,  that  he  cannot,  for  want 
of  material  testimony,  which  he  expects  to  procure,  safely  proceed  to 
trial,  and  shall  show  in  what  respect  the  testimony  expected  is  mate- 
rial, and  tha^t  he  has  used  due  dihgence  to  procure  it,  and  has  been 
unable  to  do  so  ; 

2d.  The  party  asking  the  adjournment  shall  also,  if  required  by  the 
adverse  party,  consent  that  the  testimony  of  any  witness  of  such  ad- 
verse party,  who  is  in  attendance,  be  then  taken  by  deposition  before 
the  justice,  which  shall  accordingly  be  done,  and  the  testimony  so  taken 
may  be  read  on  the  trial,  with  the  same  effect,  and  subject  to  the  same 
objections  as  if  the  witpess  were  produced.  But  such  objections  shall 
de  at  the  time  of  taking  the  deposition ; 


§587  PLEADINGS  AND  TRIAL.  249 

3d.  The  court  may  also  require  the  moving  party  to  state  upon  affi- 
davit the  evidence  which  he  expects  to  obtain,  and  if  the  adverse  party 
thereupon  admit  that  such  evidence  would  be  given,  and  that  it  be  con- 
sidered as  actually  given  on  the  trial,  or  oflFered  and  overruled  as  im- 
proper, the  trial  shall  not  be  postponed. 

584.  [1854.]  An  adjournment  may  be  had,  either  r.t  the  time  of 
joining  issue,  or  at  any  subsequent  time,  to  which  the  case  may  stand 
adjourned,  on  application  of  either  party,  for  a  period  longer  than 
ten  days,  but  not  to  exceed  four  months,  from  the  time  of  the  return 
of  summons,  upon  proof  by  the  oath  of  the  party,  or  otherwise,  to  the 
satisfaction  of  the  justice,  that  such  party  cannot  be  ready  for  trial  be- 
fore the  time  to  which  he  desires  an  adjournment,  for  want  of  material 
evidence,  particularly  describing  it,  and  that  the  delay  has  not  been 
made  necessary  by  any  act  of  negligence  on  his  part  since  the  action 
was  commenced  ;  that  he  has  used  due  diligence  to  procure  the  evi- 
dence, and  has  been  unable  to  do  so,  and  that  he  expects  to  procure 
the  evidence  at  the  time  stated  by  him :  provided^  that  if  the  adverse 
party  admit  that  such  evidence  would  be  given,  and  consent  that  it 
may  be  considered  as  given  on  the  trial,  or  offered  and  overruled  as 
improper,  the  adjournment  shall  not  be  had. 

585.  No  adjournment  shall  be  granted  for  a  period  longer  than  ten 
days,  upon  the  application  of  either  party,  except  upon  condition  that 
such  party  file  an  undertaking,  with  sureties,  to  be  approved  by  the 
justice,  to  the  effect  that  they  will  pay  to  the  opposite  the  amount  of 
any  judgment  which  may  be  recovered  against  the  party  applying. 

586.  If  the  plaintiff  fail  to  appear  at  the  return  day  of  the  sum- 
mons, the  action  shall  be  dismissed.  If  the  defendant  fail  to  appear  at 
the  return  day  of  the  summons,  or  if  either  party  fail  to  attend  at  a 
day  to  which  the  trial  has  been  adjourned,  or  fail  to  make  the  neces- 
sary pleading  or  proof  on  his  part,  the  case  may,  nevertheless,  proceed 
at  the  request  of  the  adverse  party,  and  judgment  shall  be  given  in 
conformity  with  the  pleadings  and  proofs. 

587.  A.  trial  by  jury  shall  be  demanded  at  the  time  of  joining 
issue,  and  shall  be  deemed  waived  if  neither  party  then  demand  it. 
When  demanded,  the  trial  of  the  case  shall  be  adjourned  until  a  time 

Q 


250  JUDGMENT   AND    EXECUTION.  §588 

and  place  fixed  for  the  return  of  the  jury.  If  neither  party  desire  an 
adjournment,  the  time  and  place  shall  be  determined  by  the  justice, 
and  shall  be  on  the  same  day,  or  -svithin  the  next  two  days.  The  jury 
shall  be  summoned  upon  an  order  of  the  justice,  from  the  citizens  of 
the  city  or  township,  and  not  from  the  bystanders. 

1.  Where  a  party  demands  a  jury  trial  in  a  iytice's  court,  and  neglects  to  appear 
on  the  adjourned  day,  the  justice  may  proceed  amPnear  the  cause  without  a  jury. — A'j7- 
patrickv.  Curr,  3  Abbott,  117. 

4 

588.  At  the  time  appointed  for  the  trial,  the  justice  shall  proceed 
to  call,  from  the  jurors  summoned,  the  names  of  the  persons  to  consti- 
tute the  jury  for  the  trial  of  the  issue.  The  jury,  by  consent  of  the 
parties,  may  consist  of  any  number  not  more  than  twelve  nor  less  than 
three. 

589.  If  a  sufficient  number  of  competent  and  indifferent  jurors  do 
not  attend,  the  justice  shall  direct  others  to  be  summoned  from  the  vi- 
cinity, and  not  from  the  bystanders,  sufficient  to  complete  the  jury. 

590.  Either  party  may  challenge  the  jurors.  The  challenges  shall 
be  either  peremptory,  or  for  cause.  Each  party  shall  be  entitled  to 
three  peremptory  challenges.  Either  party  may  challenge  for  cause, 
on  any  grounds  set  forth  in  section  one  hundred  and  sixty-two.  Chal- 
lenges for  cause  shall  be  tried  by  the  justice  in  a  summary  mamicr, 
who  may  examine  the  juror  challenged,  and  witnesses. 


CHAPTER  IV. 

JUDGMENT   AND   EXECUTION. 

591.  Judgment  that  the  action  be  dismissed  without  prejudice  to 
a  new  action,  may  be  entered  with  costs  in  the  following  cases  : 

1st.  When  the  plaintiff  voluntarily  dismisses  the  action  before  it  is 
finally  submitted  ; 

2d.  When  he  fails  to  appear  at  the  time  specified  in  the  summons, 
or  upon  adjournment,  or  within  one  hour  thereafter ; 

3d.  When  it  is  objected  at  the  trial,  and  appears  by  the  evidence, 
that  the  action  is  brought  in  the  wrong  county,  or  township,  or  city  ; 
but  if  the  objection  be  taken  and  overruled,  it  shall  be  cause  only  of 


I 


§595  JUDGMENT.  251 

reversal  on  appeal,  and  shall  not  otherwise  mvalidate  the  judgment ;  if 
not  taken  at  the  trial,  it  shall  be  deemed  waived,  and  shall  not  be 
cause  of  reversal. 

592.  When  the  defendant  fails  to  appear  and  answer,  judgment 
shall  be  given  for  the  plaintiffi^as  follows: 

1st.  When  a  copy  of  the  amount,  note,  bill,  or  other  obligatiourupon 
which  the  action  is  brought,  was  fil^d  with  the  justice  at  the  time  the 
summons  was  issued,  judgment  shall  be  given  without  further  evidence, 
for  the  sum  specified  in  the  summons  ; 

2d.  In  other  cases  the  justice  shall  hear  the  evidence  of  the  plain- 
tiff, and  render  judgment  for  such  sum  only  as  shall  appear  by  the  evi- 
dence to  be  just ;  but  in  no  case  exceeding  the  amount  specified  in  the 
summons. 

1.  Where  a  justice,  by  statements  which  are  untrue,  that  defendant  is  not  intending 
to  appear,  is  induced  to  take  up  a  cause  at  an  unusual  time,  e.  g.,  while  engaged  in  the 
trial  of  another  cause,  a  judgment  rendered  by  him  in  favor  of  the  plaintiff"  will  be  re- 
versed.— Beach  v.  McCann,  4  Abbott,  18. 

593.  Upon  issue  joined,  if  a  jury  trial  be  not  demanded,  the  jus- 
tice shall  hear  the  evidence,  and  decide  all  questions  of  fact  and  of 
law,  and  render  judgment  accordingly. 

594.  [1854.]  Upon  a  verdict,  the  justice  shall  immediately  ren- 
der judgment  accordingly.  When  the  trial  is  by  the  justice,  judg- 
ment shall  be  entered  immediately  after  the  close  of  the  trial,  if  the 
defendant  has  been  arrested  and  is  still  in  custody  ;  in  other  cases  it 
shall  be  entered  within  four  days  after  the  close  of  the  trial ;  if  the 
action  be  on  contract  against  two  or  more  defendants,  and  the  sum- 
mons is  served  on  one  or  more,  but  not  on  all,  the  judgment  shall  be 
entered  up  only  against  those  who  were  served,  if  the  contract  be  a 
several  or  a  joint  and  several  contract ;  but  if  the  contract  be  a  joint 
contract  only,  the  judgment  shall  lie  entered  up  against  all  the  defend- 
ants, but  shall  only  be  enforced  against  the  joint  property  of  all,  and 
the  separate  property  of  the  defendants  served. 

595.  When  the  amount  found  due  to  either  party  exceeds  the  sum 
for  which  the  justice  is  authorized  to  enter  judgment,  such  party  may 
remit  the  excess,  and  judgment  may  be  rendered  for  the  residue. 


252  EXEcuTiox.  §59G 

596.  If  the  defendant,  at  any  time  before  the  trial,  offer  in  writing 
to  allow  judgment  to  be  taken  against  him  for  a  specified  sum,  the 
plaintiff  may  immediately  have  judgment  therefor,  with  the  costs  then 
accrued ;  but  if  he  do  not  accept  such  offer  before  the  trial,  and  fail 
to  recover  in  the  action  a  sum  equal  to  the  offer,  he  shall  not  recover 

•  costs,  but  costs  sliall  be  adjudged  against  him,  and  if  he  recover,  de- 
ducted from  his  recovery.  But  the  offer  and  failure  to  accept  it  shall 
not  be  given  in  evidence  to  affect  the  recovery  otherwise  than  as  to 
costs,  as  above  provided. 

1 .  If  the  tender  is  made  after  a  suit  is  brought,  it  must  be  accompanied  with  the 
costs  then  accrued. — Peujile  v.  Banker,  8  How.  Pr.,  258. 

597.  When  a  judgment  is  rendered  in  a  case  where  the  defendant 
is  sulyect  to  arrest  and  imprisonment  thereon,  it  shall  be  so  stated  in 
the  judgment  and  entered  in  the  docket. 

598.  When  the  prevailing  party  is  entitled  to  costs  by  this  chap- 
ter, the  justice  shall  add  their  amount  to  the  verdict ;  or  in  case  of  a 
failure  of  the  plaintiff  to  recover,  or  in  case  of  a  dismissal  of  the  action, 
shall  enter  up  judgment  in  favor  of  the  defendant  for  the  amount  of 
such  costs. 

599.  [1854.]  The  justice,  on  demand  of  the  party  in  whose  favor 
judgment  is  rendered,  shall  give  him  a  transcript  thereof,  which  may 
be  filed  and  docketed  in  the  office  of  the  clerk  of  the  county  where  the 
judgment  was  rendered.  The  time  of  the  receipt  of  the  transcript  by 
the  county  clerk,  shall  be  noted  by  him  thereon,  and  entered  in  the 
docket ;  and  from  that  time  executions  may  be  issued  by  the  county 
clerk  on  such  judgments  to  the  sheriff  of  any  other  county  of  the  state, 
in  the  same  manner  as  upon  judgments  recovered  in  the  higher  courts. 
All  process  upon  judgments  recovered  in  justices'  courts,  to  be  execut- 

V  A"  ^^  within  the  same  county,  shall  be  issued  by  the  justice  or  his  suc- 
cessors in  office.  No  judgment  rendered  by  a  justice  of  the  peace 
shall  create  any  lien  upon  any  lands  of  the  defendant,  unless  a  tran- 
script of  such  judgment,  certified  by  the  justice,  shall  be  filed  and  re- 
corded in  the  office  of  the  recorder.  AVhen  such  transcript  is  to  be 
filed  in  any  other  county  than  that  in  which  the  justice  resides,  such 
transcript  shall  be  accompanied  with  the  certificate  of  the  county  clerk 
as  to  the  official  character  of  the  justice.     When  so  filed  and  recorded 


"^J-lv 


§602  EXECUTION.  253 

in  the  office  of  the  recorder  for  anj  county,  such  judgment  shall  con- 
stitute a  lien  upon,  and  bind  the  lands  and  tenements  of  the  judgment 
debtor,  situated  in  the  county  where  such  transcript  may  be  filed  and 
recorded  in  favor  of  such  judgment  creditor,  as  if  such  judgment  had 
been  rendered  in  the  district  court  of  such  county. 

600.  Execution  for  the  enforcement  of  a  judgment  in  a  justice's 
court  may  be  issued,  on  the  application  of  the  party  entitled  thereto, 
at  any  time  within  five  years  from  the  entry  of  judgment. 

1.  Unless  an  execution  issue  within  five  years,  the  judgment  is  void  ;  nor  will  the 
loss  of  the  justice's  docket  prevent  the  time  from  running. —  White  v.  Clarl-,1  CaX., 
Oct.  T. 

601.  The  execution,  when  issued  by  a  justice,  shall  be  directed  to 
the  sheriff  or  to  a  constable  of  the  county,  and  subscribed  by  the  jus- 
tice by  whom  the  judgment  was  rendered,  or  by  his  successor  in  office, 
and  shall  bear  date  the  day  of  its  delivery  to  the  officer  to  be  executed. 
It  shall  intelligibly  refer  to  the  judgment  by  stating  the  names  of  the 
parties,  and  the  name  of  the  justice  before  whom,  and  of  the  county, 
and  the  township  or  city  where,  and  at  the  time  when,  it  was  render- 
ed ;  the  amount  of  judgment,  if  it  be  for  money;  and  if  less  than  the 
whole  is  due,  the  true  amount  due  thereon.  It  shall  contain,  in  like 
cases,  similar  directions  to  the  sheriff  or  constable  as  are  required  by 
the  provisions  of  Title  VII,  of  this  act,  in  an  execution  to  the  sheriff. 

602.  [1854.]  The  sheriff  or  constable  to  whom  the  execution  is 
directed,  shall  proceed  to  execute  the  same  in  the  same  manner  as  the 
sheriff  is  required  by  the  provisions  of  Title  VII,  of  this  act,  to  pro- 
ceed upon  executions  directed  to  him  ;  and  the  constable,  when  the 
execution  is  directed  to  him,  shall  be  vested  for  that  purpose  with  all 
the  powers  of  the  sheriff ;  and  after  issuing  an  execution,  and  either 
before  or  after  its  return,  (if  the  same  be  returned  unsatisfied  either  (^fl/t 
in  whole  or  in  part,)  the  judgment  creditor  shall  be  entitled  to  an  or-  «r-  i^ 
der  from  the  justice,  requiring  the  judgment  debtor  to  attend  at  a  time 

to  be  designated  in  the  order,  and  answer  concerning  his  property  be- 
fore such  justice,  and  the  attendance  of  such  debtor  may  be  enforced 
by  the  justice.  On  his  attendance,  such  debtor  may  be  examined 
under  oath  concerning  his  property  ;  and  any  person  alleged  to  have 
in  his  hands  property,  moneys,  effects  or  credits  of  the  judgment  debtor. 


254  GENERAL    PROYISIOXS.  §603 

may  also  be  required  to  attend  and  be  examined,  and  the  justice  may 
order  any  property  in  the  hands  of  the  judgment  debtor,  or  any  other 
person,  not  exempt  from  execution,  belonging  to  such  debtor,  to  be 
applied  towards  the  satisfaction  of  the  judgment,  and  the  justice  may 
enforce  such  order  by  imprisonment  until  complied  with  ;  but  no  judg- 
ment debtor  or  other  person  shall  bo  required  to  attend  before  the  jus- 
tice out  of  the  county  in  which  he  resides. 


CHxVPTER  V. 

GENERAL   PROVISIONS. 

603.  [1858,  1854.]  Those  provisions  of  this  act,  which  are  refer- 
red to  in  this  title,  and  no  other,  shall,  in  addition  to  the  provisions  em- 
braced in  this  title,  be  appHcable  to  justices'  com-ts  and  proceedings 
therein. 

604.  [1855.]  Every  justice  shall  keep  a  book  denominated  a 
"  docket,"  in  which  he  shall  enter  : 

1st.  The  title  of  every  action  or  proceeding  ; 

2d.  The  object  of  the  action  or  proceeding,  and  if  a  sum  of  money 
be  claimed,  the  amount  of  the  demand  ; 

8d.  The  date  of  the  summons,  and  the  time  of  its  return ;  and  if  an 
order  to  arrest  the  defendant  be  made,  or  a  writ  of  attachment  be  is- 
sued, a  statement  of  these  facts  ; 

4th.  The  time  when  the  parties  or  either  of  them  appear,  or  their 
non-appearance,  if  default  be  made  ;  a  minute  of  the  pleadings  and 
motions  ;  if  in  writing,  referring  to  them  ;  if  not  in  writing,  a  concise 
statement  of  the  material  parts  of  the  pleading,  and  of  all  motions 
made  during  the  trial  by  either  party,  and  his  decisions  thereon  ; 

5th.  Every  adjournment,  stating  on  whose  application,  whether  on 
oath,  evidence,  or  consent,  and  to  what  time ; 

6th.  The  demand  for  a  trial  by  jury,  when  the  same  is  made,  and 
by  whom  made  ;  the  order  for  the  jury,  and  the  time  appointed  for  the 
trial  and  return  of  the  jury  ; 

Tth.  The  names  of  the  jury  who  aj^pear  and  are  sworn  ;  the  names 
of  all  witnesses  swoiu,  :uul  at  whose  request ; 

8th.  The  verdict  of  the  jury,  and  when  received ;  if  the  jury  dis- 


§G08  GENERAL  PROVISIONS.  255 

agree,  and  arc  discharged,  the  fact  of  such  disagreement  and  dis- 
charge ; 

9th.  The  judgment  of  the  court,  specifying  the  costs  included,  and 
the  time  when  rendered  ; 

10th.  The  issuing  of  the  execution,  when  issued,  and  to  whom  ;  the 
renewals  thereof,  if  any,  and  when  made ;  and  a  statement  of  any 
money  paid  to  the  justice,  and  when,  and  by  whom  ; 

11th.  Tiie  receipt  of  a  notice  of  appeal,  if  any  be  given,  and  of  the 
appeal  bond,  if  any  filed. 

605.  The  several  particulars  of  the  last  section  specified  shall  be 
entered  under  the  title  of  the  action  to  which  they  relate,  and  at  the 
time  when  they  occur.  Such  entries  in  a  justice's  docket,  or  a  tran- 
script thereof,  certified  by  the  justice  or  his  successor  in  ofiicc,  shall 
be  primary  evidence  to  prove  the  facts  so  stated  therein. 

606.  A  justice  shall  keep  an  alphabetical  index  to  his  docket,  in 
which  shall  be  entered  the  names  of  the  parties  to  each  judgment,  with 
a  reference  to  the  page  of  entry.  The  names  of  the  plaintiffs  shall  be 
entered  in  the  index,  in  the  alphabetical  order  of  the  first  letter  of  the 
family  names. 

607.  It  shall  be  the  duty  of  every  justice,  upon  the  expiration  of 
his  term  of  office,  to  deposit  with  his  successor  his  official  dockets,  as 
well  his  own  as  those  of  his  predecessors,  which  maybe  in  his  custody, 
to  be  kept  as  public  records.  If  the  office  of  a  justice  become  vacant 
by  his  death,  or  removal  from  the  township  or  city,  or  otherwise,  be- 
fore his  successor  is  elected  and  qualified,  the  dockets  in  possession  of 
such  justice  shall  be  deposited  Avith  the  county  clerk  of  the  county,  to 
be  by  him  delivered  to  the  successor  in  office  of  the  justice. 

608.  [1855.]  Any  justice  with  whom  the  docket  of  his  predeces- 
sor is  deposited,  may  issue  execution  or  other  process,  upon  a  judg- 
ment there  entered  and  unsatisfied,  in  the  same  manner  and  with  the 
same  effect  as  the  justice  by  whom  the  judgment  was  entered  might 
have  done.  In  case  of  the  creation  of  a  new  county,  or  the  change 
of  the  boundary  between  two  counties,  any  justice  into  whose  hands 
the  docket  of  a  justice  formerly  acting  as  such  within  the  same  terri- 
tory may  come,  shall,  for  the  purposes  of  this  section,  be  considered 
the  successor  of  said  former  justice. 


256  GENERAL  PROVISIONS  §609 

609.  The  justice  elected  to  fill  a  vacancy  shall  be  deemed  the  suc- 
cessor of  the  justice  whose  office  became  vacant  before  the  expiration 
of  a  full  term.  When  a  full  term  expires,  the  same  or  another  per- 
son elected  to  take  office  in  the  same  township,  or  city,  from  that  time 
shall  be  deemed  the  successor. 

610.  When  two  or  more  justices  are  equally  entitled  under  the  last 
section  to  be  deemed  the  successors  in  office  of  a  justice,  the  county 
judge  shall,  by  a  certificate,  subscribed  by  him  and  filed  in  the  office 
of  the  county  clerk,  designate  which  justice  shall  be  the  successor  of  a 
justice  going  out  of  office,  or  whose  office  has  become  vacant. 

611.  The  summons,  execution,  and  every  other  paper  made  or 
issued  by  a  justice,  except  a  subpoena,  shall  be  filled  up  without  a  blank 
left  to  be  filled  by  another,  other\\ise  it  shall  be  void. 

612.  In  case  of  the  sickness,  or  other  disability,  or  necessary  ab- 
sence of  a  justice  on  a  return  of  a  summons,  or  at  the  time  appointed 
for  a  trial,  another  justice  of  the  same  township  or  city  may,  at  his  re- 
quest, attend  in  his  behalf,  and  shall  thereupon  become  vested  with 
the  power,  for  the  time  being,  of  the  justice  before  whom  the  summons 
was  returnable.  In  that  case  the  proper  entry  of  the  proceedings  be- 
fore the  attending  justice,  subscribed  by  him,  shall  be  made  in  the 
docket  of  the  justice  before  whom  the  summons  was  returnable.  If 
the  case  be  adjourned,  the  justice  before  whom  the  summons  was  re- 
turnable, may  resume  jurisdiction. 

/  e^  A        613.     A  justice  may,  at  the  request  of  a  party,  and  on  being  satis- 
fied  that  it  is  expedient,  specially  depute  any  discreet  person  of  suita- 
ble age,  and  not  interested  in  the  action,  to  serve  a  summons  or  exe- 
cution with  or  without  an  order   to  arrest  the  defendant,  or  with  or 
without  a  writ  of  attachment.     Such  deputation  shall  be  in  writing  on 
SS  /)  /  ^    the  process.  -Jf^o^  A^u,  ,  A'a-^^   lAe. 

1.     Tlic  constable  may  appoint  deputies. — Tatjior  v.  Brown,  4  Cal.,  188. 

• 

614.  The  person  so  deputed  shall  have  the  authority  of  a  consta- 
ble in  relation  to  the  service,  execution  and  return  of  such  process,  and 
shall  be  subject  to  the  same  obligations. 

615.  A  constable,  notwithstanding  the  expiration  of  his  term  of 


§619  GENERAL  PROVISIONS.  257 

oflfice,  may  proceed  and  complete  the  execution  of  all  final  process 
which  he  has  begun  to  execute,  in  the  same  manner  as  if  he  still  con- 
tinued in  office,  and  his  sureties  shall  be  liable  to  the  same  extent. 

616.  A  justice  may  punish  as  for  contempt,  persons  guilty  of  the 
following  acts,  and  no  other : 

1st.  Disorderly,  contemptuous,  or  insolent  behavior  towards  the  jus- 
tice while  holding  the  court,  tendhig  to  interrupt  the  due  course  of  a 
trial,  or  other  judicial  proceedhig  ; 

2d.  A  breach  of  the  peace,  boisterous  conduct,  or  violent  disturb- 
ance in  the  presence  of  the  justice,  or  in  the  immediate  vicinity  of  the 
court  held  by  him,  tending  to  interrupt  the  due  course  of  a  trial,  or 
other  judicial  proceeding  ; 

3d.  Disobedience  or  resistance  to  the  execution  of  a  lawful  order  or 
process,  made  or  issued  by  him  ; 

4th.  Disobedience  to  a  subpoena  duly  served,  or  refusing  to  be 
sworn,  or  answer  as  a  witness  ; 

5th.  Rescuing  any  person  or  property  in  the  custody  of  any  officer, 
by  virtue  of  an  order  or  process  of  the  court  held  by  him. 

617.  When  a  contempt  is  committed  in  the  immediate  view  and 
presence  of  the  justice,  it  may  be  punished  summarily,  for  which  an 
order  shall  be  made  reciting  the  facts,  as  occurring  in  such  immediate 
view  and  presence,  adjudging  that  the  person  proceeded  against  is 
thereby  guilty  of  a  contempt,  and  that  he  be  punished  as  therein  pre- 
scribed. When  the  contempt  is  not  committed  in  the  immediate  view 
,and  presence  of  the  justice,  a  warrant  of  arrest  may  be  issued  by  such 
justice,  on  which  the  person  so  guilty  may  be  arrested  and  brought  be- 
fore the  justice  immediately,  Avhen  an  opportunity  to  be  heard  in  his 
defense  or  excuse  shall  be  given.  The  justice  may  thereupon  dis- 
charge him,  or  may  convict  him  of  the  offense.  A  justice  may  punish 
for  contempts  by  fine  or  imprisonment,  or  both  ;  such  fine  not  to  ex- 
ceed in  any  case  one  hundred  dollars,  and  such  imprisonment  one 
day. 

618.  The  conviction,  specifying  particularly  the  offense  and  the 
judgment  thereon,  shall  be  entered  by  the  justice  in  his  docket. 

619.  Justices  of  the  peace  may  issue  subpoenas  in  any  action  or 


258  NEW  TRIALS.  §620 

proceeding  in  the  courts  held  by  them,  and  final  process  on  any  judg- 
ment recovered  therein,  to  any  part  of  the  county. 

620.  Justices  of  the  peace  may  issue  commissions  to  take  the  dep- 
ositions of  witnesses  out  of  this  state,  and  settle  interrogatories  to  be 
annexed  thereto,  and  direct  the  manner  in  Avhich  the  commissions 
shall  be  returned.  The  provisions  of  Title  XI  of  this  act,  so  far  as 
the  same  arc  consistent  with  the  jurisdiction  and  powers  of  justices' 
courts,  shall  be  applicable  to  justices'  courts,  and  to  actions  and  pro- 
ceedings therein. 

621.  In  actions  respecting  "mining  claims,"  proof  shall  be  admit- 
ted of  the  customs,  usages,  or  regulations  established  and  in  force  at 
the  bar  or  diggings  embracing  such  claim  ;  and  such  customs,  usages, 
or  regulations,  when  not  in  conflict  with  the  constitution  and  laws  of 
this  state,  shall  govern  the  decision  of  the  action. 

1.  Actual  possession  of  a  portion  of  a  mining  claim  according  to  tlic  custom  of 
miners  in  a  given  locality,  extends  bj'  construction  to  the  limits  of  the  claim  held  in  ac- 
cordance with  such  customs. — Hicks  v.  Bell,  3  Cal.,219. 

2.  This  provision  would  seem  to  imply  a  permission  on  the  j)art  of  the  state  to  the 
miner,  to  seek  wherever  he  chose  in  the  gold  bearing  districts  for  the  precious  metals. — 
McClintock  v.  Brijden,  5  Cal.,  97. 

3.  A  nuisance  working  a  common  injury  to  those  in  possession  of  mining  grounds, 
may  be  peaceably  abated  by  those  injured. — Styles  v.  Laird,  ib.,  120. 

4.  The  policy  of  the  state  in  conferring  the  privilege  of  working  the  mines,  equally 
confers  the  right  to  divert  the  streams  from  their  natural  channels. — Irwin  v.  Phillips, 
ib.,  140. 

5.  The  occupation  of  a  lot  for  the  purpose  of  hotel  keeiting  is  not  inconsistent  with 
the  policy  of  the  state  with  regard  to  mining  claims.  Facilities  for  the  business  of  min- 
ing should  be  reasonably  protected. — Fitzgerald  v.  Urton,  ib.,  308. 

6.  The  right  to  mine  for  precious  metals  can  only  be  exercised  upon  public  lands, 
and  although  it  carries  with  it  the  incidents  to  the  right,  such  as  the  use  of  wood  and 
water,  those  incidents  must  al.so  be  of  the  public  domain. — Tartar  v.  Spring  Creek  ]V. 
and  M.  Co.,  ib.,  395. 

7.  In  a  controversy  between  two  mining  companies,  it  was  competent  to  prove  tlic 
execution  of  certain  receipts  for  water  purchased  by  the  plaintiffs,  as  tending  to  show 
the  existence  of  the  company,  and  that  it  had  actually  located  and  was  in  operation  at 
the  time  the  receipts  purport  to  be  signed. — Lone  Star  Co.  v.  West  Point  Co.,  ib.,  447. 

8.  It  is  to  be  construed  as  an  action  to  recover  possession  of  a  mining  claim, 
where  the  value  does  not  exceed  two  hundred  dollars,  but  confers  no  jurisdiction  to  give 
damages  for  an  injury  thereto,  or  for  its  detention. —  ]'itn  Ettcn  v.  Jilson,  6  Cal.,  19  ; 
Small  V.  Guinn,  ib.,  447. 

9.  Where  the  comi)laint  alleges  an  injury  to  tlie  mining  claim,  and  a  prayer  for 
damages,  the  latter  should  be  disregarded  or  stricken  out,  and  the  'plaintiff  be  allowed 


§623  NEW   TRIALS.  259 

to  try  his  right  to  the  cUiim. —  Van  Etten  v.  Jilsoii,  6  Cal.,  19  ;   Grass  VaUcy  M.  Co.  v. 
Stackhouse,  ib.,  413. 

10.  The  statute  making  tlie  possessory  rights  of  settlers  on  jjuIjIIc  lands  for  agricul- 
tural or  grazing  ])urposes,  yield  to  the  rights  of  miners,  has  legalized  what  would  other- 
wise be  a  trespass,  but  it  cannot  be  extended  to  a  class  of  cases  not  especially  provid- 
ed for. — Burdge  v.   Underwood,  ib.,  45. 

11.  A  miner  has  no  right  to  dig  within  an  enclosure  surrounding  a  dwelling  iiouse 
or  other  improvements  of  another. — lb. 

12.  The  fact  that  the  parties  in  possession  of  a  gold  mine  are  foreigners  and  have 
obtained  no  license,  affords  no  apology  for  trespassers. — Mitchell  v.  Hagood,  ib.,  148. 

13.  Mining  laws,  when  introducjd  in  evidence,  are  to  be  construed  by  the  court, 
and  the  (juestion  whether  by  virtue  of  such  laws  a  forfeiture  had  accrued,  is  a  question 
of  law,  and  cannot  therefore  be  properly  submitted  to  a  jury. — Fairbanks  v.  Woodliouse, 
ib.,  433. 

14.  In  the  absence  of  mining  rules,  the  fact  that  a  party  has  located  a  claim  bounded 
by  another,  raises  no  implication  that  they  correspond  in  size  or  direction  of  lines. — 
Live  Yankee  Co.  v.  Oregon  Co.,  7  Cal.,  Jan,  T. 

15.  The  owner  of  a  mining  claim  has,  in  practical  effect,  a  good  vested  title  to  the 
property  in  the  mine,  and  should  be  so  treated  until  liis  title  is  divested  by  the  exercise 
of  the  higher  right  of  his  superior  proprietor. — Merced  Mining  Co.  v.  Fremont,  7  Cal., 
April  T. 

16.  An  appropriation  of  public  land  carries  with  it  all  the  privileges  and  incidents 
of  ownership,  against  every  one  but  the  government,  subject  only  to  rights  antecedently 
acquired. — Crandall  v.  Wood,  7  Cal-,  Oct.  T. 

17.  A  verbal  lease  of  a  mining  claim  cannot  be  enforced  against  the  claim  of  a  pur- 
chaser without  notice  of  the  lease. — Jenkins  v.  Redding,  7  Cal.,  Oct.  T. 

622.  A  new  trial  may  be  granted  by  the  justice,  on  motion,  within 
ten  days  after  the  entry  of  judgment,  for  any  one  of  the  following 
causes : 

1st.  Accident  or  surprise,  which  ordinary  prudence  could  not  have 
guarded  against ; 

2d.  Excessive  damages,  appearing  to  have  been  given  under  the 
influence  of  passion  ;  or, 

3d.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  other  de- 
cision ; 

4th.  Newly  discovered  evidence  material  for  the  party  making  the 
application,  which  he  could  not  with  reasonable  diligence  have  discov- 
ered and  produced  at  the  time. 

623.  The  application  shall  be  made  upon  affidavit  and  notice.  The 
affidavit  shall  be  filed  with  the  justice,  with  a  statement  of  the  grounds 
upon  which  the  party  intends  to  rely.      The  adverse  party  may  use 


260  APPEALS  TO  COUNTY  COURT.  §624 

counter  affidavits  on  the  fnotion,  provided  they  be  filed  one  day  previ- 
ous to  the  hearing  of  the  motion. 

624.  [1853,  1854.]  Any  party  dissatisfied  with  a  judgment  ren- 
dered in  a  justice's  court,  may  appeal  therefrom  to  the  county  court  of 
the  county,  at  any  time  within  thirty  days  after  the  rendition  of  the  judg- 
ment. The  appeal  shall  be  taken  by  filing  a  notice  of  appeal  with  the 
justice,  and  serving  a  copy  on  the  adverse  party.  The  notice  shall 
state  whether  the  appeal  is  taken  from  the  whole  or  a  part  of  the  judg- 
ment, and  if  from  a  part,  what  part,  and  whether  the  appeal  is  taken 
on  questions  of  law  or  fact,  or  both. 

1.  Service  on  the  attorney  is  deemed  service  on  the  adverse  party. —  Welton  v.  Gari- 
baldi, 6  Cal.,  245  ;   Coulter  v.  Star!:,  7  Cal.,  Jan.  T. ;   Coombs  v.  Stark,  7  Cal.,  ib. 

2.  A  mistake  in  the  notice  that  the  judgment  was  entered  on  the  4th  of  July,  instead 
of  the  2d  July,  is  not  material. — Slierman  v.  Rolberg,  8  Cal.,  Jan.  T. 

3.  If  the  party  against  whom  judgment  is  rendered,  consents  that  it  be  opened  and 
the  cause  tried,  a  subsequent  judgment  rendered  against  such  party  will  be  regular. — 
Scranton  v.  Levy,  4  Abbott,  21. 

4.  AVhere  the  notice  does  not  state  the  grounds  npon  which  the  appeal  is  founded, 
the  county  court  is  bound  to  affirm  the  judgment. — Derby  v.  Uannin,  5  Abbott,  150. 

625.  [1853,  1854.]  "When  a  party  appeals  to  the  county  court  on 
questions  of  law  alone,  he  shall,  within  ten  days  after  the  rendition  of 

udgment,  prepare  a  statement  of  the  case,  and  f\le  the  same  with  the 
ustice.  The  statement  shall  contain  the  grounds  upon  which  the  party 
intends  to  rely  on  the  appeal,  and  so  much  of  the  evidence  as  may  be 
necessary  to  explain  the  grounds,  and  no  more.  Within  ten  days  after 
he  receives  notice  that  the  statement  is  filed,  the  adverse  party,  if 
dissatisfied  with  the  same,  may  file  amendments ;  the  proposed  state- 
ment and  amendments  shall  be  settled  by  the  justice  ;  and  if  no 
amendments  be  filed,  the  original  statement  shall  be  adopted.  The 
statement  thus 'adopted,  or  as  settled  by  the  justice,  with  a  copy 
of  the  docket  of  the  justice,  and  all  motions  filed  with  him  by  the 
parties  during  the  trial,  and  the  notice  of  appeal,  shall  be  used  on  the 
hearmg  of  the  appeal  before  the  county  court. 

626.  [1854.]  When  a  party  appeals  to  the  county  court  on  ques- 
tions of  fact,  or  on  questions  of  both  law  and  fact,  no  statement  need 
be  made,  but  the  action  shall  be  tried  anew  in  the  county  court. 

627.  [1853,  1855.]  Upon  receiving  the  notice  of  appeal,  and  on 


§628  APPEALS  TO  COUNTY  COURT.  261 

payment  of  the  fees  of  the  justice,  and  filing  an  undertaking  as  re- 
quired in  the  next  section,  the  justice  shall,  within  five  dajs,  transmit 
to  the  clerk  of  the  county  court :  if  the  appeal  be  on  questions  of  law 
alone,  a  certified  copy  of  his  docket,  the  statement  as  admitted  or  as 
settled,  the  notice  of  appeal,  and  the  undertaking  filed  ;  or  if  the  ap- 
peal be  on  questions  of  fact  or  both  law  and  fact,  a  certified  copy  of 
his  docket,  the  pleadings,  all  notices,  motions  and  other  papers  filed  in 
the  cause,  the  notice  of  appeal  and  the  undertaking  filed  ;  and  the 
justice  may  be  compelled  by  the  county  court,  by  an  order  entered 
upon  motion,  to  transmit  such  papers,  and  may  be  fined  for  neg- 
lect or  refusal  to  transmit  the  same.  A  certified  copy  of  such  order 
may  be  served  on  the  justice,  by  the  party  or  his  attorney.  In  the 
county  court,  either  party  shall  have  the  benefit  of  all  legal  objections 
made  in  the  justice's  court. 

1.  A  justice  of  the  peace  may  refuse  to  send  up  the  transcript  of  a  cause  tried  by 
him,  unless  all  his  legal  fees  be  first  paid  by  the  appellant.-^jl/eZ>ermo/;<  v.  Douqlass,  5 
Cal.,  89  ;  Bray  v.  Redman,  6  Cal.,  287. 

2.  The  appeal  will  not  be  dismissed  because  the  justice  fails  to  send  up  the  notice 
on  appeal.  An  order  should  be  entered,  compelling  him  to  do  so. — Sherman  v.  Rolhen/, 
8  Cal.,  Jan.  T. 

3.  Where  a  party  on  appealing  to  the  county  court  executes  an  undertaking  with 
sureties,  and  flie  county  court  reverses  the  judgment  of  the  justice,  and  on  appeal  to  the 
supreme  court,  that  court  reverses  the  judgment  of  the  county  court  and  atlirms  the 
judgment  of  the  justice,  the  sureties  are  liable  not  merely  for  the  amount  of  the  jud"-- 
ment  in  the  county  court,  but  for  the  amount  recovered  in  the  supreme  court. — Smith 
T.  Cronise,  24  Barb.,  671. 

628.  [1854,  1855.]  An  appeal  from  a  justice's  court  shall  not  be 
effectual  for  any  purpose,  unless  an  undertaking  be  filed,  with  two  or  J  ^  ^0 
more  sWeties^m  the  sum  of  one  hundred  dollars,  for  the  payment  of  " 
the  costs  on  tha^appeal ;  or  if  a  stay  of  proceedings  be  claimed,  in  a 
sum  equal  to  twice  tEelnnettut,of  the  judgment,  including  costs,  when 
the  judgment  is  for  the  payment  oT'nion^  ;  or  tw^ce  the  value  of  the 
property,  including  costs,  when  the  judgment,  is  for  the  recovery  of 
specific  personal  property ;  and  shall  be  condititoed,  when  the  action 
is  for  the  recovery  of  money,  that  the  appellant  wnl  pay  the  amount  of 
the  judgment  appealed  from,  and  all  costs,  if  the  appeal  be  withdrawn 
or  dismissed,  or  the  amount  of  any  judgment  ancjxftll  costs  that  may  be 
recovered  against  him  in  said  action,  in  the  county  court.  Where  the 
action  is  for  the  recovery  of  specific  personal  property,  the  undertak- 


sm 


262  APPEALS  TO  COUNTY  COURT.  §629 

ing  shall  be  conditioned  that  the  appellant  will  pay  the  judgment  and 
costs  appealed  from,  and  obey  the  order  of  the  court  made  therein,  if 
the  appeal  be  withdrawn  or  dismissed,  or  any  judgment  and  costs  that 
may  be  recovered  against  him  in  said  action  in  the  county  court,  and 
Avill  obey  any  order  made  by  the  court  therein.  The  undertaking  shall 
be  accompanied  by  the  affidavit  of  the  sureties  that  they  are  residents 
of  the  county,  and  are  each  worth  the  amount  specified  in  the  under- 
taking, over  and  above  all  their  just  debts  and  liabilities,  exclusive  of 
property  exempt  from  execution ;  or  the  bond  shall  be  executed  by  a 
sufficient  number  of  sureties,  who  can  justify  in  the  aggregate  to  an 
amount  equal  to  double  the  amount  specified  in  the  bond,  or  a  deposit 
of  the  amount  of  the  judgment,  including  all  costs,  appealed  from,  or  of 
the  value  of  the  property,  including  all  costs  in  actions  for  the  recovery 
of  specific  personal  property,  with  the  justice  ;  and  such  deposit  shall 
be  equivalent  to  the  filing  of  the  undertaking  in  the  Act  mentioned, 
and  in  such  cases  the  justice  shall  transmit  the  money  to  the  clerk  of 
the  county  court,  to  be  paid  out  upon  the  order  of  the  court. 

629.  If  an  execution  be  issued,  on  the  filing  of  the  undertaking 
staying  all  proceedings,  the  justice  shall,  by  order,  direct  the  officer  to 
stay  all  proceedings  on  the  same.  Such  officer  shall,  upon  payment 
of  his  fees  for  services  rendered  on  the  execution,  thereupon  relin- 
quish all  property  levied  upon,  and  deliver  the  same  to  the  judgment 
debtor,  together  with  all  moneys  collected  from  sales  or  otherwise. 
If  his  fees  be  not  paid,  the  officer  may  retain  so  much  of  the  property 
or  proceeds  thereof,  as  may  be  necessary  to  pay  the  same. 

630.  [1853,  1854.]  Repealed. 

631.  [1854, 1855.]  Costs  shall  be  allowed  to  the  prevailing  party 
in  a  justice's  court. 

632.  [1854, 1855.]  Repealed. 

633.  Justices  of  the  peace  shall  receive  from  the  sheriff  or  consta- 
bles of  their  county,  all  moneys  collected  on  any  process  or  order  issued 
by  their  courts  respectively,  and  all  moneys  paid  to  them  in  their  offi- 
cial capacity,  and  shall  pay  the  same  over  to  the  parties  entitled  or 
authorized  to  receive  them,  without  dclav.     For  ^ a  violation  of  this 


§638        PROCEEDINGS    IN    RECORDERS'  AND    MAYORS'    COURTS.  263 

section,  tliey  may  be  removed  from  tlieir  office  and  shall  be  deemed 
guilty  of  a  misdemeanor. 

634.  Justices  of  the  peace  may,  in  all  cases,  require  a  deposit  of 
money,  or  an  undertaking,  as  security  for  costs  of  court,  before  issuing 
a  summons. 

635.  The  provisions  ^  sections  five  hundred  and  nineteen,  five  " 
hundred  and  twenty,  five  huMmi  and  twenty-three,  five  hundred  and  JlH^ 
twenty-five,  five  hundred  and  twfeuty-six,  five  hundred  and  twenty-  'Lt  / 
seven,  five  hundred  and  thirty-oneYnd  five  hundred  and  thirty-two,  ,--  ^ 
shall  be  applicable  to  justices'  courj;«'and  actions  therein.  ^^  / 


TITLE     XVII. 

OF  PROCEEDINGS  IN  CIVIL  CASES  IN  RECORDERS'  AND  MAYORS'  COURTS. 

636.  Civil  actions  in  recorders'  and  mayors'  courts  shall  be  com- 
menced by  filing  the  complaint,  setting  forth  the  violation  of  the  ordi- 
nance complained  of,  with  such  particulars  of  time,  place,  and  manner 
of  violation,  as  to  enable  the  defendant  to  understand  distinctly  the 
character  of  the  violation  complained  of,  and  to  answer  the  complaint. 
The  ordinance  may  be  referred  to  by  its  title.  The  complaint  shall  be 
verified  by  the  oath  of  the  party  complaining,  or  of  his  attorney  or  agent. 

1 .  The  recorder  of  the  city  of  Sacramento  has  no  jurisdiction  in  cases  of  forcible  entry 
and  unlawful  detainer. — Cronise  v.  Carghill,  4  Cal.,  120. 

637.  Immediately  after  filing  the  complaint,  a  summons  shall  be 
issued,  directed  to  the  defendant,  and  returnable  either  immediately, 
or  at  a  time  designated  therein,  not  exceeding  four  days  from  the  date 
of  its  issuance. 

638.  On  the  return  of  the  summons  the  defendant  may  plead  to 
the  complaint,  or  he  may  answer  or  deny  the  same.  Such  plea,  an- 
swer, or  denial,  may  be  oral  or  in  writing,  and  immediately  thereafter 
the  case  shall  be  tried,  unless  for  good  cause  shown,  an  adjournment  be 
granted. 


264  MISCELLANEOUS   PROVISIONS.  §639 

639.  In  all  cases  for  violation  of  an  ordinance  where  the  fine,  for- 
feiture, or  penalty  imposed  bj  the  ordinance,  is  less  than  fifty  dollars, 
the  trial  shall  be  bj  the  court.  In  actions  where  the  fine,  forfeiture, 
or  penalty  imposed  by  the  ordinance,  is  over  fifty  dollars,  the  defendant 
shall  be  entitled,  if  demanded  by  him,  to  a  jury  of  six  persons. 

640.  From  a  judgment  in  a  civil  action  in  a  recorder's  or  mayor's 
court,  an  appeal  may  be  taken  to  the  county  court.  The  appeal  shall 
be  taken  and  the  proceedings  thereon  conducted  in  the  same  manner  as 
appeals  are  taken  from  a  judgment  in  a  civil  action  in  a  justice's  court, 
and  as  the  proceedings  thereon  are  conducted. 

641.  All  proceedings  in  civil  actions  in  recorders'  and  mayors' 
courts,  except  as  herein  otherwise  provided,  shall  be  conducted  in  the 
same  manner  as  in  civil  actions  injustices'  courts. 

642.  The  provisions  of  this  title  shall  be  applicable  to  civil  actions 
in  recorders'  and  mayors'  courts  already  established,  or  which  may 
hereafter  be  established  in  any  incorporated  city  of  this  state. 


TITX.E    XVIII. 

MISCELLANEOUS   PROVISIONS. 

643.  The  supreme  court  may  make  rules  not  inconsistent  with  the 
constitution  and  laws  of  the  state,  for  its  own  government,  and  the 
government  of  the  district  courts ;  but  such  rules  shall  not  be  in  force 
until  thirty  days  after  their  adoption  and  pubhcation. 

644.  The  county  clerk  shall  be  clerk  of  the  county  court,  the  court 
of  sessions,  and  the  probate  court  of  his  county. 

645.  If  an  action  be  brought  against  a  sherifi"  for  an  act  done  by 
virtue  of  his  office,  and  he  give  written  notice  thereof  to  the  sureties 
on  any  bond  of  indemnity  received  by  him,  the  judgment  recovered 
therein  shall  be  conclusive  evidence  of  his  right  to  recover  against  such 


§648  MISCELLANEOUS   PROVISIONS.  265 

sureties  ;  and  the  court  or  judge  in  vacation  may,  on  motion,  upon  no- 
tice of  five  days,  order  judgment  to  be  entered  up  against  them  for  the 
amount  so  recovered,  inchiding  costs. 

646.  [1857.]  In  the  counties  of  Santa  Clara,  Santa  Cruz,  Mon- 
terey, San  Luis  Obispo,  Santa  Barbara,  Contra  Costa,  Los  Angeles 
and  San  Diego,  it  shall  be  the  duty  of  the  officer  to  give  the  defend- 
ant, in  (X  civil  action,  if  said  defendant  shall  require  it,  a  copy  of  the 
summons  or  other  process  in  the  Spanish  language  ;  and  in  the  coun- 
ties of  Santa  Barbara,  San  Luis  Obispo,  Los  Angeles,  and  San  Diego, 
Monterey  and  Santa  Cruz,  it  shall  be  lawful,  with  the  consent  of  both 
parties,  to  have  the  process,  pleadings,  and  other  proceedings  in  a  cause, 
in  the  Spanish  language. 

647.  Words  used  in  this  act  in  the  present  tense,  shall  be  deemed 
to  include  the  future  as  well  as  the  present ;  words  used  in  the  singu- 
lar number  shall  be  deemed  to  include  the  plural,  and  the  plural  the 
singular  ;  writing  shall  be  deemed  to  include  printing  or  printed  paper  ; 
oath  to  include  affirmation  or  declaration  ;  signature  or  subscription  to 
include  mark  when  the  person  cannot  write,  his  name  being  written 
near  it,  and  witnessed  by  a  person  who  writes  his  own  name,  as  a 
Avitness. 

648.  The  following  statutes,  namely  :  the  Act  entitled  "  An  Act 
to  regulate  proceedings  in  civil  cases  in  the  district  court,  the  superior 
court  of  the  city  of  San  Francisco,  and  the  supreme  court,"  passed 
April  twenty-second,  eighteen  hundered  and  fifty  ;  the  Act  entitled 
"  An  Act  to  regulate  proceedings  against  debtors  by  attachment,'' 
passed  April  twenty-second,  eighteen  hundred  and  fifty  ;  the  Act  en- 
titled "  An  Act  providing  for  the  collection  of  demands  against  vessels 
and  boats,"  passed  April  tenth,  eighteen  hundred  and  fifty ;  the  Act 
entitled  "  An  Act  to  regulate  proceedings  in  courts  of  justices  of  the 
peace  in  civil  cases,"  passed  April  tenth,  1850  ;  and  the  Act  entitled 
"  An  Act  to  regulate  proceedings  in  the  county  courts  in  cases  of  ap- 
peal from  the  courts  of  justices  of  the  peace,"  passed  April  eleventh, 
eighteen  hundred  and  fifty  ;  the  Act  entitled  "  An  Act  respecting  set- 
offs," passed  [April]  twenty-second,  eighteen  hundred  and  fifty,  are 
hereby  repealed ;  but  such   repeal  shall  not  invalidate  any  judgment 

R 


266  MINING  CLAIMS.  §649 

rendered,  or  order  made,  or  any  proceeding  already  taken  by  virtue 
of  said  statutes. 

649.  This  Act  shall  take  effect  on  the  first  day  of  July,  of  the 
present  year. 

650.  [1854.]  In  all  cases  where  an  undertaking  with  sureties  is 
required  by  the  provisions  of  said  act,  the  judge,  justice,  clerk,  or 
other  officer  taking  the  same,  shall  require  the  sureties  to  accompany 
the  same  with  an  affidavit  that  they  are  each  worth  the  sum  specified 
in  the  undertaking,  over  and  above  all  their  just  debts  and  liabilities, 
exclusive  of  property  exempt  from  execution  ;  provided^  that  when  the 
amoimt  specified  in  the  undertaking  exceeds  three  thousand  dollars, 
and  there  are  more  than  two  sureties  thereon,  they  may  state  in  their 
affidavits  that  they  are  severally  worth  amounts  less  than  that  ex- 
pressed in  the  undertaking,  if  the  whole  amount  be  equivalent  to  that 
of  two  sufficient  sureties. 

1.  Plaintiffs  are  not  bound  to  delay  suit  on  an  undertaking  until  after  issue  and  re- 
turn of  the  execution. — Nickersonv.  Chatterton,  7  Cal.,  April  T. 

2.  The  affidavit  is  sufficient,  if,  when  fairly  construed,  it  comply  with  the  statute. — 
Taaffey.  RosenthaU,  7  Cal.,  April  T. 

3.  Where  a  mere  defective  undertaking  has  been  bona  fide  ffiven,  and  the  party  will 
file  a  good  one  before  the  case  is  submitted,  a  court  should  permit  iiim  to  do  so. — Bry- 
an V.  Berry,  7  Cal.,  July  T.  ;   Cunningham  v.  Hopkins. — 76. 

4.  In  an  action  against  sureties  to  save  from  a  legal  liability,  the  complaint  need 
not  aver  actual  damage  ;  in  such  cases  the  legal  liability  is  the  measure  of  damages. 
McGee  v.  Roen,  4  Abbott,  8. 

651.  [1854,  1855.]  In  actions  respecting  miners'  claims,  in  a 
justice's  court,  the  justice  shall  have  power,  upon  application  of  the 
party  out  of  possession  of  the  claim  or  claims,  after  notice  of  one  day 
to  the  adverse  party,  to  appoint  a  receiver  of  the  proceeds  of  the  claim, 
pending  the  action.  If  the  parties  agree  upon  a  person,  he  shall  be 
appointed  such  receiver  ;  if  the  parties  do  not  agree,  the  justice  shall 
appoint  a  receiver,  who  shall  take  an  oath  which  shall  be  filed  with  the 
justice,  that  he  is  not  interested  in  the  action  between  the  parties,  and 
that  he  will  honestly  keep  an  account  of  all  gold  dust  or  metals  of  any 
kind,  the  proceeds  of  the  claim  or  claims  in  dispute.  After  the  ap- 
pointment of  such  receiver,  the  justice  shall  have  power  to  issue  a  writ- 
ten order  to  any  sheriff  or  constable,  to  put  such  receiver  into  posses- 
sion of  such  claim,  which  order  said  sheriff  or  constable  shall  execute. 


§654  GENERAL    PROVISIONvS.  267 

and  the  receiver  shall  remain  in  possession  of  the  claim  or  claims,  so 
long  as  said  action  may  remain  undetermined  in  any  court.  The  court 
in  which  the  action  may  be  pending,  shall  have  the  authority  upon  the 
application  of  either  party,  with  two  days'  notice  to  the  other,  from 
time  to  time,  to  make  such  orders  for  the  disposition  of  the  proceeds  oi 
such  claim  or  claims,  for  the  safety  of  the  same,  as  may  seem  proper. 
The  court  in  which  the  action  may  be  pending,  shall  also  have 
power,  upon  application  of  the  receiver,  based  upon  his  affidavit,  to 
punish  as  for  contempt,  all  persons  who  have  been  guilty  of  disturb- 
ing the  receiver  in  the  possession  of  the  claims. 

652.  [1854.]  The  receiver  mentioned  in  the  last  section,  shall 
keep  an  accurate  account  of  all  the  proceeds  of  the  claim  pending  the 
action,  and  of  all  amounts  paid  out  for  working  the  same,  and  shall  re- 
tain the  proceeds  and  pay  the  same  over,  pursuant  to  the  order  of  the 
court.  The  receiver  shall  also  be  required,  on  demand  of  either  party 
to  give  security  for  the  faithful  performance  of  his  trust,  and  shall  be 
allowed  for  the  same  a  reasonable  compensation,  to  be  paid  out  of  the 
proceed  of  the  claim  in  his  hands,  but  in  no  case  exceeding  ten  per 
cent,  upon  such  proceeds. 

653.  [1854.]  Writs  of  certiorari  and  mandamus,  may  be  issued 
in  the  cases  prescribed  by  said  act,  by  a  judge  of  the  supreme  court, 
district  court,  or  county  court,  in  vacations,  and  may  in  the  discretion 
of  the  judge  issuing  the  writ,  be  made  returnable,  and  a  hearing  may 
be  had  on  the  return  thereof  in  the  vacation. 

See  Sees.  456,  467. 

654.  [1854.]  Whenever  property  has  been  taken  by  an  officer, 
under  a  writ  of  attachment,  in  pursuance  of  the  provisions  of  said  act, 
and  it  shall  be  made  to  appear  satisfactorily  to  the  court,  or  a  judge 
thereof,  or  a  county  judge,  that  the  interest  of  the  parties  to  the  action 
will  be  subserved  by  a  sale  thereof,  the  court  or  judge  may  order  such 
property  to  be  sold  in  the  same  manner  as  property  is  sold  under  an 
execution,  and  the  proceeds  to  be  deposited  in  court  to  abide  the  judg- 
ment in  the  action.  Such  order  shall  be  made  only  upon  notice  to  the 
adverse  party,  or  his  attorney,  in  case  such  party  has  been  personally 
served  with  a  summons  in  the  action. 

See  Sees.  130,221. 


268  GENERAL  PROVISIONS.  §655 

655.  [1854.]  A  copy  of  any  record,  document,  or  paper  in  the 
custody  of  a  public  officer  of  this  state,  or  of  the  United  States,  within 
this  state,  certified  under  the  official  seal,  or  verified  by  the  oath  of 
such  officer,  to  be  a  true,  full  and  correct  copy  of  the  original  in  his 
custody,  may  be  read  in  evidence  in  an  action  or  proceeding  in  the 
courts  of  this  state,  in  the  like  manner  and  with  the  hke  effect,  as  the 
original  could  be  if  produced. 

See  Sees.  448,  449. 

656.  [1854.]  When  two  or  more  persons  associated  in  any  busi- 
nesss,  transact  such  business  under  a  common  name,  whether  it  com- 
prises the  names  of  such  persons  or  not,  the  associates  may  be  sued  by 
such  common  name,  the  summons  in  such  cases  being  served  on  one 
or  more  of  the  associates,  but  the  judgment  in  such  cases  shall  bind  only 
the  joint  property  of  the  associates. 

657.  [1854.]  All  decisions  given  upon  an  appeal,  in  any  appellate 
court  of  this  state,  shall  be  given  in  writing,  with  the  reason  therefor, 
and  filed  with  the  clerk  of  the  court,  but  this  section  shall  not  apply  to 
actions  tried  with  a  jury  anew  in  the  county  court,  or  on  appeal  from 
a  justice's  court. 

658.  [1854.]  A  defendant  against  whom  an  action  is  pending, 
upon  a  contract  or  for  specific  personal  property,  may  at  any  time  be- 
fore answer,  upon  affidavit  that  a  person  not  a  party  to  the  action 
makes  against  him,  and  -without  any  collusion  with  him,  a  demand  upon 
the  same  contract,  or  for  the  same  property,  upon  due  notice  to  such 
person,  and  the  adverse  party,  apply  to  the  court  for  an  order  to  sul> 
stitute  such  person  in  his  place,  and  discharge  him  from  liability  to 
either  party  on  his  depositing  in  court  the  amount  claimed  on  the  con- 
tract, or  delivering  the  property  or  its  value  to  such  person  as  the 
the  court  may  direct,  and  the  court  may,  in  its  discretion,  make  the 
order. 

1 .  This  order  can  only  be  made  when  it  is  certain  that  the  only  question  is,  whether 
the  j>luiutitF  or  a  third  person  is  the  true  owner  of  the  debt,  fund  or  other  property  for 
which  judgment  is  demanded. — Slifriiian  v.  Partriili/e,  4  Ducr,  646. 

659.  [1854.]  Any  person  shall  be  entitled  to  intervene  in  an  ac- 
tion who  has  an  interest  in  the  matter  in  litigation,  in  the  success  of 


§6G4  INTERVENTION.  269 

either  of  the  parties  to  the  action,  or  an  interest  against  both.  An 
intervention  takes  phice  when  a  third  person  is  permitted  to  become  a 
party  to  an  action  between  other  persons,  either  bj  joining  the  plain- 
tiff in  claiming  what  is  sought  by  the  complaint,  or  by  uniting  with  the 
defendant  in  resisting  the  claims  of  the  plaintiff,  or  by  demanding  any- 
thing adversely  to  both  the  plaintiff  and  the  defendant. 

1.  Sustained. — Brouks  v.  linger,  5  Cal.,  281;  Sanjeant  v.  Wilson,  5  CaL,  504  ; 
Yuba  county  v.  Adams,  7  Cal.,  Jan.  T. 

2.  The  petition  of  an  intervenor  must  be  treated  as  a  declaration  or  complaint. — 
Peoplev.  Talmaije,  6  Cal.,  256. 

3.  In  an  action  to  foreclose  a  mortgage  upon  property  claimed  as  a  homestead,  the 
wife  should  be  allowed  to  intervene. — Sanjeant  v.  Wilson,  5  Cal.,  504. 

4.  On  intervention,  if  the  proceedings  between  the  debtor  and  a  prior  creditor,  are 
not  void,  but  voidable,  the  defendant  can  alone  object. — Dixei/  v.  Pollock,  7  Cal.,  Oct.  T. 

660.  [1854.]  A  third  person  may  intervene,  either  before  or  after 
issue  has  been  joined  in  the  cause. 

661.  [1854.]  The  intervention  shall  be  by  petition  or  complaint, 
filed  in  the  court  in  which  the  action  is  pending,  and  it  must  set  forth 
the  grounds  on  Avhich  the  intervention  rests.  A  copy  of  the  petition 
or  complaint  shall  be  served  upon  the  party  or  parties  to  the  action 
against  whom  anything  is  demanded,  who  shall  answer  it  as  if  it  were 
an  original  complaint  in  the  action. 

662.  [1854.]  The  court  shall  determine  upon  the  intervention  at 
the  same  time  that  the  action  is  decided  ;  if  the  claim  of  the  party  in- 
tervening is  not  sustained,  he  shall  pay  all  costs  incurred  by  the 
intervention. 

663.  [1854.]  On  the  trial  of  any  action  in  a  court  of  record, 
either  party  may  require  the  clerk  to  take  dow^i  the  testimony  in  writing. 

1 .  A  transcript  of  which,  cei'tified  by  the  clerk,  is  a  substitute  for  a  bill  of  exceptions 
or  statement  of  facts  in  their  absence. — Inr/rahamv.  Gildemeester,  2  Cal.,  161. 

664.  [1854.]  The  party  obtaining  the  postponement  of  a  trial,  in 
any  court  of  record  shall  also,  if  required  by  the  adverse  party,  con- 
sent that  the  testimony  of  any  witness  of  such  adverse  party,  who  is  in 
attendance,  be  then  taken  by  deposition  before  a  judge  or  clerk  of  the 
court  in  which  the  case  is  pending,  or  before  such  notary  public  as  the 


270  GENERAL  PROVISIONS.  §665 

court  may  indicate,  which  shall  accordingly  be  done,  and  the  testimony 
so  taken  may  be  read  on  the  trial  with  the  same  eifect,  and  subject  to 
the  same  objections,  as  if  the  witness  were  produced. 

665.  [1854.]  Whenever  costs  are  awarded  to  a  party  by  an  ap- 
pellate court,  such  party  may  have  an  execution  for  the  same  on  filing 
a  remittitur  with  the  clerk  of  the  court  below,  and  it  shall  be  the  duty 
of  such  clerk  whenever  the  remittitur  is  filed,  to  issue  the  execution 
upon  application  therefor  ;  and  whenever  costs  are  awarded  to  a  party 
by  an  order  of  any  court,  such  party  may  have  an  execution  therefor 
in  like  manner  as  upon  a  judgment. 

1.  When  a  remittitur  is  sent  down,  the  clerk  of  the  district  court  may  issue  execu- 
tion for  costs. — Mayor  of  Mary sville  v.  Buchanan,  3  Cal.,  212. 

666.  [1854.]  Sections  five,  six,  seven,  fifteen,  sixteen,  seventeen, 
eighteen,  nineteen  and  twenty,  of  the  act  entitled  "  an  act  amendatory 
of  and  supplementary  to  the  act  entitled  '  an  act  to  regulate  proceed- 
ings in  civil  cases  in  the  courts  of  justice  in  this  state,'  "  passed  May 
eighteenth,  one  thousand  eight  hundred  and  fifty-three,  are  hereby 
repealed,  and  the  sections  amended  by  said  amendatory  act,  shall  stand 
revived  as  amended  by  this  act. 

667.  [1854.]  This  act  shall  take  effect  on  the  first  day  of  July, 
one  thousand  eight  hundred  and  fifty-four. 

1.     This  Section  refers  to  Sees.  650,  et  seq. 


f-Ld^    C^c^-  c/f^  ^^ 


■-^v^^a^^ 


'/-L-CJO 


^     /tC'  <^PZ   ^^r^ijaSbi-^i-^-^^ 


§2  FORCIBLE   ENTRIES   AND    UNLAWFUL   DETAINERS.  271 


AN    ACT 


CONCERNING   FORCIBLE    ENTRIES  AND    UNLAWFUL 

DETAINERS. 

PASSED    APRIL   22,    1850. 

The  People  of  the  State  of  California  represented  in   Senate  and 
Assembly,  do  enact  as  follows : 


\.  No  person  or  persons  shall  hereafter  make  any  entry  into  lands, 
tenements,  or  other  possessions,  but  in  cases  where  entry  is  given  by 
law,  and  in  such  cases,  not  with  strong  hand  nor  with  multitude  of 
people,  but  only  in  a  peaceable  manner  ;  and  if  any  person  from  hence- 
forth do  to  the  contrary,  and  thereof  be  duly  convicted,  he  shall  be 
punished  by  fine. 

1.  When  a  party  of  four  or  five  men  enter  a  building  occupied  by  another,  in  the 
night  time,  during  the  hours  of  sleep,  and  take  possession,  and  avow  their  intention  to 
keep  possession,  and  actually  do  so,  it  is  sufficient  evidence  of  force  to  maintain  this 
action. — Scarlett  v.  Lamarqite,  5  Cal.,  63. 

2.  To  sustain  this  action,  actual  force,  threats  of  violence,  or  just  apprehension  of 
violence  to  person,  must  be  shown  to  have  existed,  unless  the  detainer  be  riotous. — 
Frazier  v.  Hanlon,  5  Cal.,  156  ;    Willard  v.  Warren,  17  Wend.,  257. 

3.  Facts  amounting  to  a  mere  trespass,  are  not  sufficient  to  maintain  this  action. — 
Frazier  v.  Hanlon,  5  Cal.,  156. 

4.  This  act  is  in  derogation  of  the  common  law,  and  must  be  strictly  construed. — 
House  V.  Reiser,  7  Cal.,  Oct.  T. 

2.  Any  justice  of  tUfe  peace  shall  have  authority  to  inquire,  as 
hereinafter  directed,  as  well  against  those  who  make  unlawful  or  forci- 
ble entry  into  lands,  tenements,  or  other  possessions,  and  detain  the 
same,  as  against  those  who,  having  lawful  and  peaceful  entry  into 
lands,  tenements,  or  other  possessions,  unlawfully  detain  the  same ; 


272.  FORCIBLE   ENTRIES   AND   UNLAWFUL   DETAINERS.  §3 

and  if  it  be  found,  upon  such  inquiry,  that  an  unlawful  or  forcible  en- 
try hath  been  made,  and  that  the  said  lands,  tenements,  or  other  pos- 
sessions, after  a  lawful  entry,  are  held  unlawfully,  then  such  justice 
shall  cause  the  party  complaining  to  have  restitution  thereof. 

1.  The  recorder  of  the  city  of  Sacramento  has  no  jurisdiction  in  these  cases. —  Cro- 
nise  V.  CarghiU,  4  CaL,  120. 

2.  In  this  action  the  holding  over  the  land  is  the  foundation  of  the  action,  and  must 
be  proven. — Reed  v.  Grant,  4  Cal.,  176. 

3.  A  description  of  the  land  sufficiently  definite  to  enable  the  administration  of  sub- 
stantial justice,  is  all  that  is  required. — Hernandez  v.  Simon,  4  Cal.,  182. 

4.  This  action  is  a  snmmary  proceeding  provided  by  statute,  and  does  not  belong 
to  the  district  courts,  by  virtue  of  their  constitutional  jurisdiction. — Ramirez  v.  Murray, 
4  Cal.,  293  ;   Townsend  v.  Brooks,  5  Cal.,  52. 

5.  A  landlord  cannot  maintain  this  action  in  his  own  name  for  an  unhiwful  entry 
upon  the  possession  of  his  tenant. — Treat  v.  Stuart,  5  Cal.,  113. 

6.  This  statute  provides  a  remedy  for  unlawful  as  well  as  forcible  entry,  and  its 
policy  is  doubtless  to  avoid  nice  distinctions  as  to  what  constitutes  force. — Moore  v. 
Goslin,  5  Cal.,  266. 

7.  The  jurisdiction  vested  in  justices' courts  to  try  these  cases  is  not  unconstitution- 
al.—0'Ca/%/(««  V.  Booth,  6  Cal.,  63  ;  Ifart  v.  Moon,  ib.,  161. 

8.  In  an  action  for  holding  over  after  the  expiration  of  the  term,  three  days'  notice 
is  all  that  is  required. —  Garbrell  v.  Fitch,  ib.,  189. 

9.  The  jurisdiction  of  the  justices  in  these  cases  arises  from  the  ^'im*/ criminal  na- 
ture thereof,  and  falls  under  the  head  of  "  special  cases,"  as  used  in  the  constitution. — 
Small  V.  Gwinn,  ib.,  447. 

3.  When  any  complaint  shall  be  made  in  writing  to  any  justice  of 
the  peace,  of  any  such  unlawful  or  forcible  entry,  or  unlawful  detainer, 
said  justice  shall  issue  a  summons,  directed  to  the  sheriff  or  any  con- 
stable of  the  county,  commanding  him  to  summon  the  person  or  per- 
sons against  whom  such  complaint  shall  have  been  made,  to  appear  be- 
fore the  said  justice  on  a  day  in  such  summons  named,  which  shall  not 
be  less  than  ten  days  from  the  day  of  issuing  the  summons,  and  at  the 
place  therein  mentioned. 

1.  A  tenant  in  common  cannot  sustain  an  action  of  forcible  entry  and  detainer 
against  his  co-tenant  for  holding  over.  The  land  must  first  be  partitioned. — Lick  v. 
O'Donnell,  3  Cal.,  59. 

2.  The  statute  docs  not  require  an  allegation  of  possession  by  the  plaintiff";  this 
objection  is  at  most  only  subject  to  demurrer. —  Cronise  v.  CarghiU,  4  Cal.,  120. 

3.  The  rule  that  a  penal  statute  must  be  declared  upon  by  the  party  seeking  recov- 
ery under  it,  does  not  apply  to  pleadings  in  justices'  courts. — O'Gillaghan  v.  Booth,  6 
Cal.,  63. 


§7  FORCIBLE   ENTRIES   AND    UNLAAVFUL   DETAINERS.  273 

4.     The  complaint  need  not  pray  for  treble  damages,  to  warrant  the  court  in  so  ad- 
judging.— Hart  V.  Moon,  ib.,  IGl. 

4.  Such  summons  shall  be  served  upon  the  person  or  persons 
against  whom  the  same  is  issued,  by  delivering  a  certified  copy  thereof 
to  such  person  or  persons,  at  least  two  days  before  the  return  day 
thereof ;  and  the  officer  serving  the  same  shall  make  a  special  return 
of  the  time  and  manner  of  serving  such  summons. 

5.  After  the  return  of  the  summons,  served  as  hereinbefore  pro- 
vided, and  at  the  time  and  place  appointed  in  said  summons,  the  jus- 
tice shall  proceed  to  hear  and  determine  said  complaint,  unless  either 
party  shall  demand  a  jury  ;  in  which  case  the  justice  shall  issue  a 
venire  for  a  jury  in  the  same  manner  and  upon  the  same  terms  as  in 
other  cases  provided  for  trial  by  jury  in  justices'  courts,  and  such  jury 
shall  be  sworn  as  in  other  cases. 

6.  If,  at  the  time  of  making  of  such  complaint,  it  shall  be  made  to 
appear  that  the  person  or  persons  against  whom  said  complaint  is 
made,  or  either  of  them,  are  absent  from  the  county,  it  shall  be  the 
duty  of  the  justice  before  whom  the  same  is  made,  to  issue  his  sum- 
mans  as  hereinbefore  provided,  and  the  same  may  be  served  by  leav- 
ing a  certified  copy  thereof  at  the  last  and  usual  place  of  abode  of  such 
person  or  persons,  not  less  than  two  days  before  the  return  day  thereof, 
which  copy  shall  be  left  Avith  some  member  of  the  family,  or  some  per- 
son residing  at  such  place,  of  suitable  age  and  discretion,  to  whom  the 
contents  thereof  shall  be  explained  by  the  officer  leaving  the  same, 
and  the  officer  shall  make  a  special  return  of  the  time  and  manner  of 
serving  said  summons,  and  the  suit  shall  thereafter  proceed  the  same 
as  though  aj)ersonal  service  were  had  of  such  summons. 

7.  The  justice  may,  at  his  discretion,  adjourn  any  trial  under  this 
act,  not  exceeding  ten  days,  and  when  the  defendant,  his  agent  or  at- 
torney, shall  make  oath  that  he  cannot  safely  proceed  to  trial,  for  want 
of  some  material  witness,  naming  him,  that  he  has  made  due  exertion 
to  obtain  such  witness,  and  beUeves,  if  an  adjournment  be  allowed,  he 
will  be  able  to  procure  the  attendance  of  such  witness,  or  his  deposi- 
tion, hi  time  to  produce  the  same  upon  trial ;  in  which  case,  if  such 
person  or  persons  will  give  bond,  with  one  or  more  sufficient  sureties, 


274  FORCIBLE   ENTRIES   AND   UNLAWFUL   DETAINERS.  §8 

conditioned  to  pay  the  said  complainant  for  all  rent  that  may  accrue 
during  the  pending  of  such  suit,  and  all  costs  and  damages  consequent 
upon  such  adjournment,  the  said  justice  shall  adjourn  said  cause  for 
such  reasonable  time  as  may  appear  necessary,  not  exceeding  three 
months. 

8.  The  testimony  of  any  witness,  which  may  be  considered  neces- 
sary by  either  party,  may  be  taken  in  the  same  manner,  and  with  the 
like  effect,  as  is  provided  for  the  taking  of  testimony  in  other  cases  in 
justices'  courts. 

9.  On  the  trial,  the  complainant  shall  only  be  required  to  show,  in 
addition  to  the  forcible  entry  or  detainer  complained  of,  that  he  was 
peaceably  in  actual  possession  at  the  time  of  the  forcible  entry,  or  was 
entitled  to  the  possession  of  the  premises  at  the  time  of  a  forcible  hold- 
ing over.  The  defendant  may  show  in  his  defense  that  he,  or  his  an- 
cestors, or  those  whose  interest  in  such  premises  he  claims,  have  been 
in  quiet  possession  thereof  for  the  space  of  one  whole  year  together 
next  before  the  said  inquisition,  and  that  his  interest  therein  is  not 
then  ended  or  determined,  and  such  showing  shall  be  a  bar  to  the  pros- 
ecution, and  in  no  case  Avhen  the  title  of  land  is  necessarily  involved, 
shall  a  justice  of  the  peace  have  cognizance. 

1 .  The  plaintiff  in  this  action  must  show  an  actual  peaceable  possession  in  himself, 
at  the  time  of  the  entry. — Treat  v.  Stuart,  5  Cal.,  113. 

2.  What  is  actual  and  what  constructive  possession,  in  many  cases  must  be  a  ques- 
tion of  fact  for  the  jury. — O'Calhgkan  v.  Booth,  6  Cal.,  63. 

3.  When  the  plaintiff  in  an  action  for  a  forcible  entry  for  the  front  of  a  town  lot, 
proved  tliat  he  had  a  small  house  on  the  rear  of  it,  luld,  sufficient  to  warrant  a  jury  in 
finding  an  actual  possession  of  the  whole  lot. — lb. 

4.  A  mere  survey  and  marking  lines  of  a  boundary,  without  an  enclosure  of  the 
premises,  is  not  a  possession  in  law,  unless  made  so  by  complying  with  the  statute  in 
reference  to  the  mode  of  maintaining  possessory  actions  on  public  land. — Bird  v.  Den- 
nison,  7  Cal.,  April  T. 

5.  The  possession  must  be  actual,  peaceable  and  exclusive,  and  not  a  mere  scramb- 
ling or  interrupted  possession,  or  the  exercise  of  casual  acts  of  ownership  over  the 
premises. — House  v.  Keiser,  7  Cal.,  Oct.  T. 

10.  If  upon  the  trial  of  any  complaint  under  this  act,  the  justice 
or  jury  shall  find  the  defendant  or  defendants,  or  either  of  them, 
guilty  of  the  allegations  in  the  complaint,  said  justice  shall  thereupon 
enter  judgment  for  the  complainant  to  have  restitution  of  the  premises, 


§13  FORCIBLE   ENTRIES    AND   UNLAWFUL   DETAINERS.  275 

and  shall  impose  such  fine,  not  exceeding  one  hundred  dollars,  consid- 
ering all  the  circumstances,  as  he  may  deem  just,  and  shall  tax  the 
costs  for  the  complainant,  and  may  issue  execution  therefor  ;  and  the 
said  justice  shall  also  award  and  issue  a  writ  of  restitution  ;  but  if  the 
said  justice  or  the  jury  find  that  the  person  complained  of  is  not  guilty, 
the  justice  shall  tax  the  costs  against  the  complainant,  and  issue  exe- 
cution therefor. 

11.  If  the  jury  empannelled  cannot  agree  upon  a  verdict,  the  jus- 
tice may,  with  the  consent  of  the  parties,  discharge  them,  and  issue  a 
venire  returnable  forthwith,  or  at  some  other  time  agreed  upon  by  the 
parties. 

12.  In  all  cases  of  a  verdict  by  the  justice  or  jury  for  the  complain- 
ant, the  damages  shall  be  assessed  as  well  for  waste  and  injury  com- 
mitted upon  the  premises,  as  for  the  rents  and  profits  during  such  de- 
tainer ;  and  the  verdict  shall  also  find  the  monthly  value  of  the  rents 
and  profits  of  the  said  premises  ;  and  the  complainant  shall  be  entitled 
to  recover  treble  damages  against  the  persons  against  whom  judgment 
has  been  rendered,  which  damages  shall  be  assessed  by  the  justice  or 
jury,  and  when  so  assessed  shall  be  trebled  by  said  justice,  and  entered 
as  a  judgment  in  the  cause  upon  which  execution  may  issue. 

1 .  A.,  in  pursuance  of  the  provisions  of  the  "Act  prescribing  the  mode  of  maintain- 
ing and  defending  possessory  actions  on  lands  belonging  to  the  United  States,"  entered 
upon  unoccupied  land,  and  marked  it  out,  so  that  its  boundaries  might  be  easily  traced, 
and  commenced  to  build  a  house  upon  it,  when  he  was  ousted  by  B. ;  held,  in  an  action 
of  forcible  entry,  A.  could  recover  the  land  from  B.,  but  without  a  fine  or-  treble  dam- 
ages.— Stark  V.  Barnes,  4  Cal,,  412. 

.  13.  When  any  person  shall  hold  over  any  lands,  tenements,  or 
other  possessions,  after  the  termination  of  the  time  for  which  they  are 
demised,  or  let  to  him  or  her,  or  to  the  person  under  whom  he  or  she 
holds  possession,  or  contrary  to  the  conditions  or  covenants  of  the  lease 
or  agreement  under  which  he  or  she  holds,  or  after  any  rent  shall  be- 
come due  according  to  the  terms  of  such  lease  or  agreement,  and 
shall  remain  unpaid  for  the  space  of  three  days,  in  all  such  cases,  if 
the  lessor,  his  heirs,  executors,  administrators,  assigns,  agent  or  attor- 
ney, shall  make  demand  in  writing  of  such  tenant,  that  he  or  she  shall 
deliver  possession  of  the  premises  held  as  aforesaid,  and  if  such  tenant 
shall  refuse  or  neglect  for  the  space  of  three  days  after  such  demand, 


276  FORCIBLE   ENTRIES   AND    UNLAWFUL   DETAINERS,  §14 

to  quit  the  possession  of  such  lands  or  tenements,  or  to  pay  the  rent 
thereof,  due  and  unpaid  as  aforesaid,  upon  complaint  therefor  to  any 
justice  of  the  peace  of  the  proper  county,  the  justice  shall  proceed  to 
hear,  try,  and  determine  the  same,  in  the  same  manner  as  in  other 
cases  hereinbefore  provided  for,  but  shall  impose  no  fine  upon  any  such 
case  mentioned  in  this  section. 

1.  By  the  terms  of  an  award,  which  was  decisive  between  a  landlord  and  his  tenant, 
the  tenant  was  to  quit  the  premises  on  the  9th ;  held,  the  landlord  had  no  right  to  give 
notice  before  the  10th.  The  tenant  had  then  six  days  to  remove,  wherefore  an  action 
commenced  on  the  10th  was  premature. — Ray  v.  Armstromj,  4  Cal.,  208. 

14.  The  preceding  section  shall  not  extend  to  any  person  who  has, 
or  shall  have  continued  in  possession  one  year  after  the  termmation 
of  the  time  for  which  the  premises  Avere  demised,  or  leased,  or  let  to 
him  or  her,  or  those  under  whom  he  or  she  holds  possession,  or  to  any 
person  who  continues  in  possession  three  years,  quietly  and  peaceably. 

15.  Every  person  summoned  as  a  juror,  or  subpoenaed  as  a  wit- 
ness, who  shall  not  appear,  or  who,  appearing,  shall  refuse  to  serve  or 
give  evidence  in  any  prosecution  instituted  under  this  act,  shall  forfeit 
and  pay  for  every  such  default  or  refusal,  to  the  use  of  the  county, 
unless  some  reasonable  cause  be  assigned,  such  fine  not  exceeding 
twenty  dollars,  as  the  said  justice  shall  think  proper  to  impose,  and 
execution  may  issue  therefor. 

16.  [1858.]  If  either  party  shall  feel  aggrieved  by  the  verdict  of 
the  jury  or  decision  of  the  justice,  he  may  appeal  within  ten  days,  as 
in  other  cases  tried  before  justices  of  the  peace,  and  he  shall  give  bond 
with  two  or  more  sufficient  sureties,  to  be  approved  by  said  justice, 
conditioned  to  pay  all  costs  of  such  appeal,  and  abide  the  order  th^ 
court  may  make  therein,  and  pay  all  rent  and  other  damages  justly 
accruing  during  the  pendency  of  such  appeal ;  and  vpon  the  filing  of 
the  notice  of  apj^eal,  and  the  affidavit  of  the  appellant  that  the  appeal 
is  taken  in  good  faith,  and  that  he  intends  to  perfect  said  appeal,  the 
justice  shall  grant  a  stag  of  the  writ  of  restiti(tio7i,for  not  exceeding 
tivo  dags,  for  the  p)urpose  of  allowing  the  appellant  an  opyportimity  to 
file  his  appeal  bond,  and  for  no  other. 

17.  [1852.]  Upon  taking  such  appeal,  all  further  proceedings  in 
the  case  shall  be  thereby  stayed,  and  the  appellate  court,  in  all  cases 


§21  FORCIBLE    ENTRIES   AND    UNLAWFUL   DETAINERS.  277 

which  are  now  pending  or  which  may  be  hereafter  brought,  shall  proceed 
to  try  the  case  anew,  and  shall  issue  all  necessary  Avrits  and  process  to 
caiTy  out  the  provisions  of  this  act.  All  laws  or  parts  of  laws  which 
require  a  statement  of  the  case  or  evidence,  or  exceptions  to  be  taken 
before  a  justice  of  the  peace,  on  the  trial  of  a  case  for  forcible  entry 
and  unlawful  detainer,  in  order  to  perfect  an  appeal,  are  hereby  re- 
pealed, and  the  same  shall  be  tried  in  the  appellate  court,  on  the  evi- 
dence introduced  before  said  appellate  court. 

1.  The  authority  of  the  court  totiy  these  cases  anew,  on  appeal,  is  the  exercise  of 
appellate  and  not  original  jurisdiction. — Tomsend  v.  Broolcs,  5  Cal.,  52. 

2.  The  power  of  the  county  court  to  treble  the  damages  by  way  of  penalty  in  ac- 
tions of  forcible  entry,  results  by  necessary  implication  from  its  power  to  try  the  case 
anew. — 0'  Calhujhan  v.  Booth,  6  Cal.,  6.3. 

18.  If  a  writ  of  restitution  shall  have  been  issued  previous  to  the 
taking  of  the  appeal,  the  justice  shall  give  the  appellant  a  certificate 
of  the  allowance  of  such  appeal,  and  upon  the  serving  of  such  certifi- 
cate upon  the  officer  having  such  writ  of  restitution,  said  officer  shall 
cease  all  further  proceedings  by  virtue  of  such  writ,  and  if  such  writ 
shall  not  have  been  completely  executed,  the  parties  in  possession  shall 
remain  in  possession  of  the  premises  until  the  appeal  shall  be  deter- 
mined. 

19.  In  all  cases  of  appeal  under  this  act,  the  appellate  court  shall 
not  dismiss  or  quash  the  proceedings  for  want  of  form,  only  provided 
the  proceedings  have  been  conducted  substantially  according  to  the 
provisions  of  this  act. 

20.  Amendments  to  the  complaint,  answer,  or  summons,  in  mat- 
ters of  form  only,  may  be  allowed  by  the  court  at  any  time  before 
final  judgment,  upon  such  terms  as  may  be  just,  and  all  matters  of  ex- 
cuse, justification,  or  avoidance  of  the  allegations  in  the  complaint, 
may  be  given  in  evidence  under  the  answer. 

21.  The  following,  or  equivalent  forms,  may  be  used  in  proceed- 
ings under  this  act,  to  wit : 

SUMMONS. 

The  people  of  the  state  of  California 

To  the  sheriff  or  any  constable  of  the  county  aforesaid  : 


278  FORCIBLE    ENTRIES    AND    UNLAWFUL    DETAINER.  §21 

Whereas,  A.  B.,  of  the  county  of hath  exhibited  to  me,  a 

justice  of  the  peace  for  said  county,  a  complaint  against  C.  D.,  of  the 

county  of for  that  the  said  C.  D.,  of  the  county  of on 

the day  of A.  D., at  the  county  of (here  in- 
sert the  substance  of  the  complaint  with  sufficient  certainty.)  You 
are  therefore  commanded  to  summon  the  said  C.  D.,  if  he  be  found  in 
your  county,  to  be  and  appear  before  me  at  my  office,  (or  stating  the 

place)  on  the day  of A.  D., ,  then  and  there 

to  make  answer  unto  the  complaint  aforesaid. 

Given  under  my  hand  and  seal,  this day  of A.  D., 

.  E.  F.,  Justice  of  the  Peace. 

WRIT   OF   RESTITUTION. 

The  people  of  the  state  of  California 

Tci  the  sheriff,  or  any  constable  of  the  county  aforesaid : 

Whereas,  A.  B.,  of  the  county  of at  a  court  of  inquiry  of  an 

unlawful  or  forcible  entry,  or  unlawful  detainer,  (as  the  case  may  be) 
held  at  my  office  (or  state  the  place)  in  the  county  aforesaid,  on  the 

day  of A.  D., ,  before  me,  a  justice^  of   the 

peace  for  the  county  aforesaid,  by  the  consideration  of  the  court,  hath 
recovered  judgment  against  C.  D.,  to  have  restitution  of  (here  describe 
the  premises,  as  in  the  complahit).  You  arc  therefore  commanded 
that,  taking  with  you  the  force  of  the  county,  if  necessary,  you  cause 
the  said  C.  D.  to  be  immediately  removed  from  the  aforesaid  premises, 
and  the  said  A.  B.  to  have  peaceable  restitution  of  the  same  ;  and  you 
are  also  commanded  that,  of  the  goods  and  chattels  of  the  said  C.  D., 

within  said  county,  you  cause  to  be  made  the  sum  of dollars, 

for  the  said  plaintiff,  together  with  the  costs  of  suit  endorsed  hereon, 
and  make  return  hereof  within  thirty  days  from  this  date. 

Given  under  my  hand,  this day  of A.  D.,-t . 

E.  F.,  Justice  of  the  Feace. 

1.  Tliis  writ  docs  not  determine  cither  the  right  to  the  property  or  the  right  of  pos- 
session, and  constitutes  no  defense  to  an  action  of  ejectment. — Mitchell  v.  Hagood,  6 
Cal.,  148. 


RULES  OF  THE  SUPREME  COURT 

OF  CALIFORNIA. 


I.  Applicants  for  license  to  practice  as  attorneys  and  counselors 
of  this  court  may  be  examined  on  the  first  day  of  each  term. 

II.  In  all  cases  where  an  appeal  is  perfected,  and  the  statement  set- 
tled, if  there  be  one,  twenty  days  before  the  commencement  of  the  next 
succeeding  term  of  this  court,  the  transcript  of  the  record  shall  be  filed 
on  or  before  the  first  day  of  such  term. 

III.  If  the  transcript  is  not  filed  within  the  time  prescribed,  the 
appeal  may  be  dismissed,  on  motion,  during  the  first  week  of  the  term 
without  notice,  upon  satisfactory  evidence  of  the  omission.  A  cause 
so  dismissed  may  be  restored  during  the  same  term,  upon  good  cause 
shown,  on  notice  to  the  opposite  party ;  and  unless  so  restored,  the 
dismissal  shall  be  final ;  and  a  bar  to  any  other  appeal  in  the  same 
cause. 

IV.  Satisfactory  evidence  of  the  omission  to  file  the  transcript 
shall  be  deemed  to  be  the  certificate  of  the  clerk  below,  under  the  seal 
of  the  court,  certifying  the  amount  or  character  of  the  judgment,  the 
date  of  its  rendition,  and  that  no  appeal  has  been  taken  ;  or,  if  an  ap- 
peal has  been  taken,  the  time  when  perfected,  and  also  that  the  appel- 


280  RULES  OF  THE  SUPREME  COURT. 

lant  has  received  the  transcript,  or  that  he  has  not  directed  a  tran- 
script to  be  made  out ;  or,  if  he  has  given  such  direction,  that  he  has 
not  tendered  the  fees  therefor. 

V.  When  the  a})pellant  fails  to  file  his  transcript  of  the  record 
within  the  time  prescribed,  the  respondent,  instead  of  moving  for  a 
dismissal,  may  himself  file  the  transcript  and  require  the  appellant  to 
file  his  statement  of  points.  In  default  whereof,  on  the  part  of  the  ap- 
pellant, the  court  will,  (if  there  be  no  error,)  affirm  the  judgment  of 
the  court  below.  If  the  appellant  file  his  statement,  the  cause  shall 
proceed  as  in  other  cases. 

VI.  All  transcripts  of  records  hereafter  sent  to  this  court  shall  be 
on  paper  of  uniform  size,  according  to  a  sample  to  be  furnished  by  the 
clerk  of  the  court,  with  a  blank  margin,  one  and  a  half  inches  Avide, 
at  the  top,  bottom,  and  sides  of  each  page. 

YII.  The  pages  of  the  transcript  shall  be  numbered,  and  shall  be 
written  only  upon  one  side  of  the  leaves. 

VIII.  Each  transcript  shall  be  prefaced  with  an  alphabetical  in- 
dex to  its  contents,  specifying  the  page  of  each  separate  paper,  order, 
or  proceeding,  and  of  the  testimony  of  each  witness,  and  shall  have  at 
least  one  blank  or  fly-sheet  cover. 

IX.  Marginal  notes  of  each  separate  paper,  order  or  proceeding, 
and  of  the  testimony  of  each  witness,  shall  be  made  throughout  the 
transcript. 

X.  The  transcript  shall  be  fastened  together  on  the  left  side  of  the 
pages,  by  ribbon  or  tape,  so  that  the  same  may  be  secured  and  every 
part  conveniently  read. 

XL  The  transcript  shall  be  written  in  a  fair,  legible  hand,  and 
each  paper  or  order  shall  be  separately  stated. 

XII.  Xo  record  which  fails  to  conform  to  these  rules  shall  be  re- 
ceived, or  docketed,  by  the  clerk  of  this  court. 

XIII.  For  the  purpose  of  correctmg  any  error  or  defect  in  the 


RULES  OF  THE  SUPREME  COURT.  281 

transcript  from  the  court  below,  either  party  may  suggest  the  same, 
in  writing,  to  this  court,  and,  u])on  good  cause  shown,  obtain  an  order 
that  the  proper  clerk  certify  to  this  court  the  whole  or  part  of  the  rec- 
ord, as  may  be  required.  If  the  attorney  of  the  adverse  party  be  ab- 
sent, or  the  fact  of  the  alleged  error  be  disputed,  the  suggestion  must 
be  accompanied  by  an  affidavit  .proving  the  existence  of  the  error  al- 
leged. 

XIV.  Upon  the  death,  or  other  disability  of  a  party,  pending  an 
appeal,  his  representative  shall  be  substituted  in  the  suit  by  sugges- 
tion, in  writing,  to  the  court,  on  the  part  of  such  representative,  or  of 
any  party  on  the  record.  Upon  the  entry  of  such  suggestion,  an  order 
of  substitution  will  be  made,  and  the  cause  shall  proceed  as  in  other 
cases. 

XV.  The  calendar  of  each  term  shall  contain  only  those  causes  in 
which  the  transcript  shall  have  been  filed  five  days  before  the  com- 
mencement of  the  term,  except  by  the  order  of  the  court  or  by  the 
written  consent  of  the  parties. 

XVI.  To  entitle  the  appellant  to  bring  the  cause  to  a  hearing  at 
any  term,  the  statement  of  his  points  and  authorities  shall  be  filed  five 
days  before  the  hearing ;  and  unless  so  filed,  the  appeal  will  be  dis- 
missed. Additional  points  may  be  filed  at  any  time,  by  leave  of  the 
court  or  the  consent  of  the  parties.  The  argument  before  the  court 
shall  be  confined  to  the  points  on  file. 

XVII.  The  clerk  shall  set  down  not  more  than  ten  causes  for  one 
day,  aud  no  cause  shall  be  set  for  Fridays  and  Saturdays.  All 
causes  from  the  same  judicial  district  shall  be  set  together,  and  in  the 
order  of  the  number  of  the  district,  commencing  with  the  first,  except 
the  calendar  shall  end  with  the  Sacramento  causes,  preceded  by  those 
from  San  Francisco. 

XVIII.  Causes  in  which  the  people  of  the  state  are  a  party,  and 
a  citizen  is  confined  in  prison,  may  be  called,  on  motion  of  the  attorney 
general,  at  any  time,  upon  due  notice  to  the  opposite  party  ;  and  for 
this  purpose,  all  such  causes  shall  have  precedence  on  the  calendar. 

XIX.  Upon  a  suggestion  in  writing,  to  the  court,  and  upon  cause 


282  RULES  OF  THE  SUPREME  COURT. 

shown,  that  an  appeal  has  been  taken  merely  for  delay,  the  court  may 
order  the  same  to  a  hearing  without  reference  to  its  place  upon  the 
calendar. 

XX.  Before  the  argument,  both  the  appellant  and  respondent 
shall  furnish  to  each  other  and  to  each  of  the  justices  of  this  court,  a 
copy  of  his  points  and  authorities ;  or  either  party  may  file  one  copy 
thereof  with  the  clerk,  who  shall  cause  to  be  made  the  copies  required 
for  the  use  of  the  court,  and  may  tax  the  same  in  his  bill  of  costs. 

XXI.  No  more  than  two  counsel  on  a  side  will  be  heard  upon  the 
argument,  except  in  peculiar  and  important  cases  ;  but  each  defendant 
who  has  appeared  separately  in  the  court  below,  may  be  heard  through 
his  own  counsel.  The  counsel  for  the  appellant  shall  be  entitled  to 
open  and  close  the  argument.     Each  counsel  will  be  allowed  one  hour. 

XXII.  All  opinions  delivered  by  the  court  shall  be  recorded  by 
the  clerk,  who  shall,  after  recording  the  same,  deUver  the  originals, 
with  a  transcript  of  the  judgment,  order  or  decree  of  the  court  there- 
on, to  the  reporter  of  this  court.  The  clerk  to  be  allowed  compensa- 
tion per  folio  as  may  be  fixed  by  la\v  for  copies  of  the  record,  to  be 
taxed  as  costs  in  such  case. 

XXIII.  All  motions  for  a  re-hearing  shall  be  upon  petition,  in 
writing,  presented  within  ten  days  after  any  final  judgment  is  ren- 
dered, or  order  made  by  the  court ;  and  no  argument  will  be  heard 
thereon.  No  mandate  to  the  court  below  shall  be  issued  until  the  ex- 
piration of  the  ten  days  herein  provided,  unless  upon  good  cause  shown, 
and  upon  notice  to  the  other  party. 

XXIV.  On  the  reversal  of  a  judgment,  a  certified  copy  of  the 
opinion  in  the  case  shall  be  transmitted  to  the  court  below. 

XXV.  No  paper  shall  be  taken  from  the  supreme  court  room,  or 
clerk's  office,  except  by  order  of  the  court,  or  of  one  of  the  judges. 

XXVI.  A  •\\Tit  of  error  shall  be  issued  by  the  clerk,  upon  the  fil- 
ing of  an  affidavit,  by  or  on  the  part  of  the  applicant,  showing  that 
there  is  a  judgment  to  be  reviewed,  describing  it,  and  also  that  there 
is  a  proper  case  for  the  issuing  of  the  writ. 


RULES  OF  THE  SUPREME  COURT.  283 

XXVn.  Upon  filing  the  writ  and  a  sufficient  bond  -with  the  clerk 
of  the  court  below,  and  upon  givuig  notice  of  the  same,  in  writing,  to 
the  opposite  party,  or  his  attorney,  and  to  the  shei'iff,  the  writ  shall 
operate  as  a  supersedeas.  The  bond  shall  be  substantially  the  same 
as  required  in  cases  on  appeal. 

XXVIII.  The  writ  of  error  shall  be  returnable,  at  the  utmost, 
within  thirty  days. 

XXIX.  The  rules  and  practice  of  this  court  respecting  appeals, 
shall  apply,  so  far  as  the  same  may  be  applicable,  to  proceedings  un- 
der a  writ  of  error. 

XXX.  The  writ  shall  not  be  allowed,  after  the  lapse  of  one  year 
from  the  date  of  the  judgment,  order,  or  decree,  which  is  sought  to 
be  reviewed. 

XXXI.  When  causes  are  placed  upon  the  calendar,  parties  shall 
be  primarily  liable  for  costs  as  follows : 

1st.  If  by  the  appellant,  he  shall  first  be  liable  ; 
2d.  If  by  the  respondent,  or  by  consent,  then  both  parties. 
In  no  civil  case  shall  the  clerk  be  required  to  remit  the  final  papers 
until  his  costs  are  paid. 

It  is  ordered  that  the  foregoing  be  adopted,  and  all  preceding 
rules  abolished. 


I,  Charles  S.  Fairfax,  clerk  of  the  supreme  court  of  the  state  of 
California,  do  certify  the  foregoing  to  be  a  true  copy  of  the  rules  of 
the  supreme  court  of  the  state  of  California,  adopted  December  2d, 
1857,  and  in  force  on  and  after  January  3d,  1858. 

CHARLES  S.  FAIRFAX,   Clerk. 


RULE  BY  THE  CLEEK. 


In  future,  no  transcript  of  record  from  a  lower  court  will  be  filed  in 
the  supreme  court  unless  accompanied  by  thirty  dollars  in  cash. 

C.  S.  F. 


'f 


INDEX. 


JiL    ''  J  2i^''  ^/f^ 


THESE    NUMBERS    KEFER    TO     SECTIONS. 


A. 

ABATEMENT— 

will  not  lie  for  death  or  disability,         16 

plea  of,  in  attachment,  138 

of  nuisance  or  waste,  249-252 

Absence — 

from  trial  waives  a  jury,  179 

of  evidence  at  trial,  158 

Absentee — 

deposition  of,  as  witness,  428-431 

see  KON-RESIDENT. 

Account— 

witness,  on  assignment  of,  4 

items  of.  need  not  be  in  complaint,  56 

copy  of  items  of,  may  be  demanded.  56 

a  mrther,  may  be  ordered,  56 

when  this,  shall  take  effect,  649,667 

f-    Actions,  Civil, 

form  of,  and  the  parties  thereto,  1-17 

there  shall  be  but  one  form  of,  1 

the  parties  to,  2 

trial  of  question  of  fact  not  in  issue,  3 
shall  be  prosecuted  by  party  in  interest.  4 
witness  on  assignment  of  chose  in  ac- 
tion, 4 
on  assignment  of  notes  and  bills,  5 
between  Imsband  and  wife,  7 
all  having  an  interest  in,  may  be  plain- 
tiffs, 12 
when  persons  severally  liable,  shall  be 

joined  in,  15 

when  to  abate.  16 

to  be  continued  b.y  successor  in  interest,  16 
place  of  trial  of,  18-21 

when  to  be  tried  in  the  county,  18,19 

when  place  of  trial  to  be  changed,  21 

how  commenced.  22-35 

court  tax  to  be  paid  in,  509 

affecting  title  to  real  property,  27 

against  two  or  more  defendants,        32,368 
complaint  to  contain  title  of,  39 

demurrer  to  another  action  between 
same  parties.  40 


Actions,  Civil,  {Continued.) 

upon  written  instruments,  53 

for  recovery  of  real  property,  58 

lor  libel  or  slander,  62 

for    claims    of    delivery  of  personal 

property,  99-110 

attachment  upon  contracts  in,  120 

may  be  dismissed,  148 

for  foreclosure  of  mortgage,  246-248 

for  nuisance,  waste  or  trespass,        249-253 
to  determine  conflicting  claims  to  real 

property,  254-263 

for  the  partition  of  real  property,  264-309 
for  usurpation  of  office,  310 

against    steamers,    vessels    and 

boats,  317-332 

joint  debtors,  368-373 

several  on  one  bond  do  not  carry  costs 

but  in  one,  496 

successive,  may  be  brought,  525 

may  be  consolidated,  526 

may  be  brought  to  determine  adverse 

claims.  527 

to  compel  principal  to  pay  security,      527 
(Injustices''  Courts.) 
to  be  brought  in  township  of  the  de- 


fendant, 
how  commenced, 
see  Cause  of  Action. 
Adjournment — 

during  absence  of  juiy, 
{In  Justices'  Courts.) 
of  a  cause, 

undertaking  on, 
see  Continuance. 
Administrator — 

may  sue  by  himself, 
appeal  bond  in  suit  by, 
when  to  pay  costs, 
Adverse  Party — 
is  defendant, 
respondent, 
intervenor, 
when  may  be  a  witness, 
testimony  introduced  to  rebwt^ 


535 
538 


170, 


580-585 
585 


6 
353 

507 


335 
659 
393 
419 


286 


INDEX 


[these  kumbers 


Affidavits — 

before  whom  taken  in  the  state, 
in  anotlier  state, 
in  a  foreign  country, 
certificate  ot  clerk  to, 
of  service  of  summons, 
of  publication  of  sinir 
of     "    —  


arrest  .^^ 

of  sureties  onT!^%st  bond, 
copy  of,  to  be  given  defendant, 
of  justification  of  bail, 
on  discharge  of  arrest, 
of  judgment  debtor, 
on  attachment. 

on  bond  to  release  attachment, 
to  discharge  attachment, 
for  contemi)t, 

against  steamer,  boat  or  vessel, 

ol    sureties    on   attachment    bond 

against  steamers,  322 

on  injunction,  112,113 

to  dissolve,  118 

in  replevin.  100 

of  claims  of  third  persons,    109 

of  sureties  on  indemnity 

bond, 

to  postpone  trial  for  absent  witness, 

on  objection  to  referee, 

on  motion  for  new  trial, 

on  judgment  after  five  years. 

on  redemption  of  property, 

of  property  due  judgment  debtor 

on  usurpation  of  office, 

of  mariners"  claims. 

of  sureties  on  appeal  bond. 

of  confession  of  judgment, 

in  submitting  controversy, 

of  arbitrators, 

of  concealment  of  witness, 

for  prisonei-  as  a  witness, 

for  exiiniiniitiou  of  witness, 

to  read  ilciin^ition  on  trial, 

on  application  to  perpetuate  testimo- 

438 
440 
441 
457 
481 
510 
513 
531 
rule  xxvi 


109 
158 
186 
194,195 
214 
234 
241 
311 
329 
355 
375 
377 
385 
405 
413 
429 
430 


affidavit  of  service  of. 

to  be  a  prima  facie  evidence, 
on  ai)plication  for  certiorari, 
of  contemi)t, 

of  costs  and  disbursements, 
of  sureties  on  bond  for  costs, 
defect  in, 
for  writ  of  error. 


{In  Justirfs'  Courts.) 

of  absent  defendants, 
on  arrest, 
on  attiichment, 
plcvin, 
luw  trial, 

'"i\TlUN— ' 
ATU. 


643 
545 
552 
557 
623 
446.647 


f  infant  for  appointment   of  guard- 
inn.  10, 


i.ii:n  ATION — 

of  real  property  cannot  prejudice  ac- 
tion. 

ALLE(4ATI()NS— 

pleadings  are  constituted  of  formal, 
answer  to  contain  denial  of, 
when  taken  as  true, 
what  are  material, 
to  Ije  literally  construed, 
are  issues  of  fact, 
{In  Jiislicrs'  Courts.) 

variation  in.  shall  be  disregarded. 


542 


203 


579 


Alteratiox— 

of  a  document  in  evidence  to  be  ac- 
counted for,  448 

Amendment — 

to  complaint,  43 

after  demurrer  filed,  67 

to  j)]eadings,  68 

to  name  of  (lefeudants,  69 

{In  Justin. s'  Courts.) 

shall  be  ordered,  578 

may  be  allowed,  680 

Answe'u— 

to  be  one  of  the  pleadings,  38 

may  be  to  part  of  the  complaint,  42 

may  be  filed  with  demurrer.  42 

when  demurrer  is  overruled,  67 
objection  to  complaint,  by.  44 

what  to  contain  when  verified,  46 

to  be  verified  or  not.  51,52 

when  embracing  new  matter,  50 

sham  and    irrelevant  to  be  stricken 

out,  50 

to  complaint  on  written  instrument,      53 

to  allegations  in  verified  complaint,       65 

to  actions  of  libel  or  slander,  63 

•      demurrer  to,  38,50,67 

time  may  l)e  enlarged  for  filing,  68 

replevin'may  issue  before  filing,  99 

injunction  may  issue  after  filing,  114 

judgment  upon  failure  to,  150 

issue  of  law  arising  upon.  152 

on  demurrer  to,  152 

in  partition  suits,  270 

of  joint  debtors,  371 

of  witness  on  examination,  40S 

I         of  party  refusing  to  testify ,  to  be  strick- 

I  en  oiit,  420 

to  writ  of  mandate,  471.476 

1         to  eontemi)t,  487 

I         OH  intervention,  661 

I      {In  Jiisticf.'i'  Courts.) 

to  summons,  535 

what  to  contain,  570,574 

to  deny  signature  to  written  instru- 

mentj  577 

{In  Recorders'  Courts.)  638 

Appearance — 

of  defendant,  waives  summons,  22 

authorizes  commission.  428,432 

what  constitutes  an,  by  an  attorney,     523 

{In  Justicts'  Courts.) 

of  parties  may  waive  jurisdiction,         537 

Appeal — 

from  judgment  against  steamers,  332 

in  ^1  Ufni/, 
what  is  an,  433 

who  mav,  335 

from  wliat  to  lie,  336 

time  allowed  to,  336 

filing  notice  of,  337 

court  tax  on,  609 

what  statement  on,  re<iuires.  338 

omitting  to  make  statement  on,  339 

time  may  be  enlarged  for  statement 

on,  340 

statement  to  be  settled,  341 

statement  to  be  annexed  to  judgment 

roll,  or  order.  342 

from  oi-deis.  343 

review  of  intermediate  orders  on,  344 

power  of  a]>pellate  court  on,  345 

damages  for  ilelav  on.  345 

appellant  to  furnisli  papers  on.  34t> 

when  may  be  dismis,>:ed,  346 

from  siibinission  of  controversy,  379 

from  award  on  arliitration,  388 

from  writ  of  certiorari.  465 

opinion  on  to  be  in  writing,  657 

filing  of  transcript  on,         rules  iii  to  xiii 


BEFER  TO  SECTIONS.] 


INDEX, 


287 


Appeal— ( Continued.) 

to  Supreme  from  District  Courts, 
wlion  iiiiiy  be  taken,  347 

uiidertakiii-;  lilotl  on,  348..%! 

sureties  on  undertakings,  355 

justification  of,  36tj 

stay  of  proceedings  on,  349 

certifying  of  judgment  on,  358 

how  brouglit  to  liearing,  361 

rule  xvi. 
to  Suptone  from  County  Court, 
when  may  be  taken.  359 

nndertaking  on,  3(50 

how  brougiit  to  a  liearing,  3t;i 

appellant  to  furnish  papers,  362 

to  District  from  Probate  Court, 
in  what  cases  to  lie,  363 

when  to  be  taken,  364 

how  brought  to  a  hearing,  365 

to    County  from  Justices'  and    Recorders'' 
Courts, 
when  to  be  tried  anew,  366 

power  of  appellate  court,  367 

rendering  of  judgment  on,  367 

statement  and  proceedings  on,  624-629,640 
Appellant — 

is  the  part}'  appealing,  335 

,     to  furnish  papers  to  appellate  court, 

346..362 
to  file  statement  of  points,  rule  xvii. 

Arbitration — 

title  to  real  property  not  subject  to,      380 

who  may  submit  to,  380 

submission  to  be  in  writing,  381 

stipulation  for  judgment  on,  382 

awards  shall  be  ma'de  on,  382 

revocation  of  submission  to,  382 

damages  for,  389 

power  of  arbitrators,  383 

award  to  be  in  writing,  385 

appeal  from,  388 

to  constitute  judgment,  385 

order  to  vacate,  386 

modification  or  correction,  387 

re-hearing  of  trial  ou,  386 

Arbitrators — 

power  of,  383 

meetings  of,  384 

award  to  be  signed  by,  385 

to  be  sworn,  384 

re-hearing  before,  386 

when  three,  all  shall  meet,  529 

Argument— 

case  may  be  reserved  for,  198 

of  causes  in  supreme  court,  rule  xxi 

Arrest— 

action  for  malicious,  with  what  join- 
ed, 64 
in  civil  cases,  72-98 
of  defendant,  73 
judge  to  issue  order,  74 
afiidavit  for  order,  75 
undertaking  on,  76 
affidavit  of  sureties  on,  76 
filing  of  affidavit  and  bond,  75,76 
when  order  to  issue  and  be  returned,  77 
sherirt"  to  serve  order,  77 
order  to  be  given  to  sheriff  and  copy  to 

defendant,  78 

discharge  of  defendant  from,  on  bail 

or  deposit,  80,91 

bail  on,  how  given,  81 

may  be  reduced,  97,98 

bail  may  arrest  or  surrender  defend- 
ant, 82,83 
exoneration  of  bail,  83,85 
liability  of  bail,  84 
deposit  on  discharge  to  be  returned,  93 
when  defendant  escapes  from,                 95 


.^.iHk. 


Arrest,  (  Continued.) 

liability  of  sheriff  on  escape  from, 

may  be  vacated. 

of  judgment  debtor, 

on  usuri)ation  of  office, 

of  absent  witness, 

when  witness  is  privileged  from, 

on  contempt, 
( In  Justices'dhurts.) 

of  def'eM(Unt,  •■«B^ 

affidavit  <K  «C*a^ 

nndertakiifg"  ouidMcl  Bail*' 

discharge  fiomj** 

adjournment  of  cause  on, 

judgment  on, 

for  contempt, 

see  Bail. 
Assignee — 

action  by 
Assignor — 

when  cannot  be  witness  for  assignee, 
Assignment — 

of  a  thing  in  action, 

of  notes  and  bills, 

not  to  prejudice  cross  demands, 

copy   of,    on  redemption  to  be  pro 
duced, 
Attachment — 

in  what  cases  issued, 

afiidavit  on, 

undertaking  in, 

duty  of  sheriff  to  serve, 

release  on  bond,  123,136.137 

several  writs  of,  may  issue,  123 

rights  and  shares  in  corporation  sub- 
ject to, 

execution  of  writ  of, 

of  real  property, 

of  stock  and  shares, 

of  debts  and  credits, 

of  personal  property, 

garnishee  of  thiid  persons  on, 
liability  of, 
examination  under  oath  of,   128 

sheriff  to  take  inventory  of  property,  129 

property  to  be  sold  under,  654 

when  perishable,  130.221 

debts  and  credits  to  be  collected  on,      130 

claim  by  third  persons  of  property,       131 

sheriffs  jury  in, 

property  attached  to  pay  judgment, 

when  judgment  is  satisfied  by,  remain 
der  to  be  delivered  to  tlofendant, 

prosecution  of  release  bond  on, 

judgment  for  defendant  on, 

motion  to  discharge, 
affidavits  on, 

discharge  of, 

sheriff  to  return  writ  of, 

against  steamers, 

may  be  discharged, 

against  absent  witness, 

for  contempt, 
{In  Justices''  Courts.) 

may  be  issued, 

affidavit  on, 

undertaking  on, 

undertaking  to  release,  55? 

Attendance — 

of  witnesses  at  court,  442-416 

see  Witness. 
Attorney — 

appointed  for  absent  defendant.  31 

to  be  served  with  amended  complaint,  43 

to  subscribe  pleadings,  51 

when  and  how  to  verify  pleadings,         55 

may  require  sheriff  to  take  pro])erty  in 
replevin.  101 

when  to  be  a  witness,  396 


96 
97,98 
239 
311 
411 
415 
482 

544 

lfe5,550 

549 

549,582 

594,597 

617 


4,5 

4 

4,5 
5 

5,48 

234 

120 
121 
122 

123 


124 
125 

125 
125 
125 
125 
126 
127 


131 
132 

133 
134 

135 
136,138 
139 
136,138,140 
141 
321 
327 
411 
482 

551 
552 


288 


INDEX, 


[THESE  KrMBEBS 


Attorxky,  (Cnntiniiftt.) 

coinpt'iisatioii  of,  494 

appearance  by,  523 

what  papers  to  gervetl  on,  524 
admission  as,                                        rule  i. 
( In  Justices'  Courts. ) 

any  one  may  act  as,  534 

ATTOlixEY   (iEXKllAL — 

veriKcation  Ijy,  55 

action  tor  usurpation  of  office  by,         3lu 

AUTIIOKITIES— 

copy    of  to    be    furnished  supreme 

court,  rule  xx. 

Awards—  380-389 
see  Arbitkatiox. 


B. 

Bail— 

may  be  jriven  in  arrest,  81 

may  surrender  or  arrest  defendant,  83 

mav  lie  enonerated,  83,85 

liability  of,  84 

justification  of,  87 

(|ualitications  of,  88 

when  sherifT  is  liable  as,  95 

on  arrest  in  usurpation  of  office,  311 

in  contemjit,  483 

(III  Justices'  Courts.) 
on  arrest  of  defendant,  550 

see  Arrest,  Uxdeutakixo. 
Bidder— 

delin<iuent  at  execution  sale,  224.225 

Bill— 

of  items,  56 

Bills— of  exclianfte. 

action  on  nssiijiinient  of,  5 

several  liability  on,  15 

of  costs  and  disbursemeiits,  510 

Blaxk- 

not  to  be  left  in   papers  of  Justices' 
Courts,  611 

Boats— 

see  .Steam Eits,  317-332 

Book— 

judfrnu-nt.  201,378 

confession  of  jud;;ment  to  be  entered 
in  judgment,  374 

BoxD- 

sheriff  responsible  on  bis  oflicial,  for 

arrested  defendant,  96 

jud>rment  on  indemnity,  to  sberiflf,        645 
see  L'  x  d  ei;t a  k  i  x«. 

BOUXDARIKS- 

see  Mete.s  and  BouxDS,  58,258 


c. 


156 
rule  XV. 


40 


«'alexdar — 

of  causes  in  court. 

in  supreme  court, 

t'AP.\C'ITY — 

demurrer  to  want  of,  to  sue 

('AU8E  OK  .\<'TIi>N — 

demurrer  to  imjiroper  joinder  of,  40 

to  want  sufficient  facts  in,  40 

constituting;  a  set-olf.  47 

seiiarnte  defenses  to  refer  to,  49 

when  several  nniy  be  joined,  (54 

limitation  to  foreign,  532 

rERTIKICATE— 

of  sale  under  execution,  239 
Cektiokari  — 

writ  of,  466-465 

how  denoiiiinati'd,  455 

bow  >:r!inted,  466,653 

application  to  be  made  on  aflidavit,      467 


f'ERTIoRARI.  (  Continufii.) 

notice  may  be  jriven  to  adverse  party,  457 

may  issue  to  show  cause,  457 

to  whom  directed,  458 

what  to  reijuire.  459 

stay  of  proceedings  by,  460 

how  to  be  served,         '  461 

how  far  writ  shall  extend,  462 

when  return  is  defective,  463 
transmission  of  judgment  to  inferior 

court,  4<>i 
what  constitutes  judgment  roll  upon.   465 

ajipeal  to  supreme  court  from,  465 

costs  allowed  as  on  appeal,  508 

C'HALLKXOE — 

to  jurors.  161 

causes  of.  162 

to  be  tried  by  the  court,  163 
(In  Justices'  Courts.) 

to  jurors,  690 

Chambers 

of  judges  of  supreme  court,  p.  11 

of  district  court,  p.  15 
Charge — 

to  the  jury,  165,168 
Child— 

see  IxPAXT. 
Chose  in  Action — 

see  Thixo  in  Action.  4^ 
Civil  Action— 

see  Action.  1-17 
Claims — 

for  personal  property.  64 

for  delivery  of,  99-110 

against  trustee,                '  64 

by  third  person  in  replevin,  109 

on  attachment,  131 

on  execution,  218 

lor  an  office  or  franchise,  310-316 

of  mariner  or  seaman,  329 

how  allowed  and  contested,      329 

action  to  determine  adverse.  527 


254-263 
264-309 


656-661 


conflicting  to  real  property, 
for  partition  of  real  property, 
(7)1  Just  ire. t'  Courts.) 
for  delivery  of  personal  property, 
of  third  persons  for  personal  property,  565 
see  1*roi'erty,  Heal  and  Tersoxal; 

Trustee,    Bevlevix,    Cooxtek 

Claims. 

('LERrn'MAX — 

when  to  be  a  witness,  397 

Clerk — 

to  endorse  complaint,  23 

to  certifv  copv  of  complaint,  28 

to  file  af^davit  and  bond  in  arrest,  75,76 

to  take  down  exceptions,  189 

of  supreme  court  to  send  remittitur,  3,58 

to  keep  register  of  action,  528 

office  of  county,  644 

to  take  down  testimony  in  writing,  663 

Coc.xoviT — 

of  action.  390 

Commission-— 

to  take  testimony,  428-444 

(In  Ju.tt ires'  Courts.) 

justices  may  issue,  620 
see  AViTXESe 

COMl'LAIXT — 

filing  of  to  commence  action,  22 

endorsement  upon  by  clerk,  23 

to  be  answered,  24 

time  to  answer,  26 

copy  to  be  .served  witli  summons,  28 

on  one  defendant.  28 

to  be  one  of  the  pleadings,  38 

what  to  contain,  39 

verification  of,  66 

demurrer  to.  40 


REFER  TO  SECTIOKS.] 


INDEX. 


289 


Complaint,  ( ('cmiiiiin'r!.) 

objections  to.  1o  bo  in  doniuricr,  41 
how  served  when  anieiuled,  43 
answer  to,  wlien  verified,  46 
upon  written  instrument,  53 
for  recovery  of  real  property.  58 
on  lite!  or  slander.  62 
answer  to  when  demurrer  is  over- 
ruled. 67 
on  injunction.  112 
verification  of,  113 
for  partition  of  real  property,  265,267,273. 

275 

on  usurpation  of  otiice,  310 

ajrainst  steamers  and  boats,  319 

new,  need  not  be  filed  against  joint 

debtors,  369 
of  narties  refusing  to  testify  stricken 

out.  420 

on  intervention,  661 

{In  Justices^  Courts) 

what  to  contain,  570,573 

on  written  instrument,  577 

(7/!  Recorders'  Courts.)  636 

Com  promi.se — 

otter  to,  390 
(In  Juslirfs'  Courts,) 

ofler  to,  596 

CONC'EALMEKT— 

of  defendant.  80 

of  property  in  replevin.  107 
{In  Justices'  Courts.) 

of  defendant,  543 

of  property  from  ofllcer,  563 

COXDITIOXS— 

performance  of,  how  jileaded,  60 

CoxFESSio"  OP  Judgment,  374-376 

{In  Justices'  Courts.)  536 

Consolidation — 

of  actions,  526 

Constable — 

shall  not  act  as  attorney,  534 

to  serve  summons,  542 

power  of  after  term  has  elapsed.  615 

Construction— 

of  allegations  to  be  liberal,  70 

of  words  in  this  act,  647 

Contempt — 

of  judgment  debtor,  245 
of  third  persons  under  an  execu- 
tion, 245 
lor  disobeying  a  subpoena,  410 
■what  is  deemed  a,  480 
when    committed    in    or    out    of 

court,  481,482 
court  to  direct  as  to  bail,  483 
sheriff  to  arrest  on  warrant  for,  483 
bail  on  arrest  for,  485 
return  of  warrant,  486 
case  to  be  heard  on,  487 
court  to  decide  on,  488 
is  also  indictable.  490 
non-appearance  after  ball,  491 
person  committing,  when  to  be  con- 
fined, 492 
judgment  or  order  on,  becomes  final,  493 
{In  Justices'  Courts.) 
justice  may  punisli  lor,  616 

Continuance — 

of  a  cause  for  an  absent  witness,  158 

for  unreturned  commission,  436 

examination  of  witness  on,  664 

{In  Justices'  Courts.) 

of  a  cause,  580-685 

Contract — 

cause  of  action  on.  64 

attachment  upon,  121 

Control — 

see  Jurisdiction,  35 


CONTUO V  KR  P Y — 

court  to  determine.  17 

submission  of  without  action,  377 

affidavit  upon,  377 

judgment  to  be  entered  on,  378 

to  be  enforced,  379 

appeal  may  be  bad  on,  379 

submission  of,  to  arbitration.  380 

Conversion— 

arrests  on.  73 
(7/1  Justices'  Courts.) 

arrest  on,  541 

Convicts — 

not  to  be  witnesses,  394 

to  answer  to  previous  conviction,  408 

Copartners 

may  be  witnesses  for  themselves,  423 

when  summoned  in  firm's  name,  656 

Corporation — 

Iiow  summoned,  29 

how  to  verify  pleadings,  55 

how  to  lie  enjoined,  117 
rights  and  shares  of,  attached.         124.125 
may  be  sued  by  judgment  creditor,       244 
(7/!  Justices'  Courts.) 

how  summoned.  542 

Correction — 

of  a  verdict,  172 

of  an  award,  387 

Costs— 

when  plaintiffs  shall  not  recover,256,390.498 

in  partition  of  real  property,  308 

on  usurpation  of  otiice,  316 

allowed  on  writ  of  mandate.  477 

prevailing  party  allowed,  494 

when  allowed  to  plaintiff,  495 

when  allowed  in  only  one  action,  496 

defendant  to  recover',  497 

when  allowed  or  not,  498 

several  defendants  may  recover,  499 
when  in  discretion  of  court  on  appeal,  500 


of  referees, 

on  postponement  of  trial, 

on  tender  before  trial, 

against  administrator  or  trustee, 

on  certiorari,  or  review, 

court  tax,  for  judge's  salary, 

memorandum  bill  of, 

judgment  to  include, 

non-resident  to  give  bond  for 

when  execution  maj'  issue  for, 
{In  .histices'  Courts.) 

to  be  entered  with  judgment, 

allowed  to  prevailing  party, 

justice  may  require  deposit, 
CoiJNTER  Claim — 

see  Set-off, 
{In  Justices'  Courts.) 

may  be  pleaded, 
County — 

when  actions  to  be  tried  in, 

to  be  stated  in  summons. 
in  complaint. 
County  Court — 

act  organizing, 

terms  of  the, 

jurisdiction  of, 

actions,  how  commenced  in, 

appeal  to, 

ap])eal  from, 

see  Appeal,  Judge. 
Court — 

mav  determine  controversies, 

actions  how  commenced  in, 

to  be  stated  in  summons, 

name  of  to  be  in  complaint. 

may  impose  terms  on  amendment, 

may  order  items  of  account. 

to  take  judicial  notice  of  statutes, 


504 
505 
506 
507 
508 
509 
510 
511 
512-514 
665 

598 
631 
634 

47 

576 

18-21 
24 
39 

p.  16 

p.  8 

p.  44 

22 

359-365 
366,624-629 


200 


INDEX. 


[these  kumbers 


Courts,  (Continued.) 

may  allow  answer  after  demurrer,  67 

may  allow  amendments,  68 

may  tlisrefjard  errors  and  defects,  71 

may  grant  injunction.  111 

to  rciiuire  undertaking  on  injunction,  115 

may  order  hearinf;  1'or  injunction,  116 

only  to  enjoin  corporations.  117 

may  appoint  receivers,  143 

to  try  issues  of  law,  l.>4 

charge  of  jury  by,  Itio 

may  adjourn  in  absence  of  jury.  170 

may  direct  sealed  verdict,  170 

may  correct  verdict,  172 

award,  387 

to  try  issue  of  fact,  179 
may  order  reference,                          183,184 

may  order  insiK-ction  of  documents.  446 
may  punish  for  contempts,                 481.482 

tax  to  be  paid  to  judge.  509 

sec  f'OCXTY.  .SUPKEME,  DISTRICT.  PRO- 
BATE. JusTic'KS',  Mayors'  and  Ke- 
coRDERS"  Courts,  Judge. 
Courts  of  Justice—      / 

in  this  State,  p.    9 

Courts  of  Sessions — 

organic  act.  p.  18 

Credits  and  Debts— 

see  Debts,  125.130.240 

Custom 

may  be  proved  in  mining  claims,  621 

D. 

Damages — 

com]>Iaiut  to  contain  amount  demand- 
ed, 39 

action  for,  to  real  or  personal  prop- 
erty, M 

excessive,  a  ground  for  new  trial,  193 

treble,  for  forcible  entry  and  detain 


253 
257 
314 
410 
477 
,  29 


when  set-off  by  improvements, 
against  usurpation  of  otHce, 
for  absence  by  witness, 
allowed  on  writ  of  mandate. 
Days.  Judicial. 
Death— 

action  for.  of  ward  or  child,  11 

of  father,  mother  may  sue,  11 

will  not  cause  abatement,  16 

not  to  prejudice  set-o(f,  48 

of  (li'fenilant,  exonerates  bail,  85 

judgnu'iit  ui>on  verdict  after,  202 

execution  upon  judgment  after.  215 

deposition   of  witness    may   be   read 

after,  4.30,442 

substitution  in  appellate  court  after, 

rule  xiv. 
Debtor— 

action  against  joint.  368-373 

examination  of  judgment.  238 

of  persons  indebted  to 
j\idginent,  241 

{In  Jiistires'  Courts.) 
examination  of  judgment.  602 

see  .Ioint  Debtors. 
Decisions— 

in  sn])remo  court  to  be  written,  657 

Debts  and  Credits — 

how  attached,  125 

how  levied  upon,  240 

sherilf  to  receii)t  for,  130,240 

Default— 

judgment  by,  may  be  opened,  68 

to  be  threatened  in  sum- 

n)ons,  24 

when  to  be  entered.  150 


I  Default,  ( Continufd.) 

judgment  by,  relief  not  to  exceed  de- 
mand, 147 
writ  of  mandate  not  to  issue  by,  470 
(In  JiiMites'  Courts.) 
judgment  by,  586,592 

Defect- 

of  jiarties.  a  ground  of  demurrer.  40 
in  pleadings,  when  deemed  waived,         45 

in  Items  of  account,  5*3 

when  to  be  disregarded,  71 

Defendant- 
Is  the  adverse  party,  2 
who  may  be  made,  13.658 
who  shall  be  joined  as,  14 
one  or  more,  may  defend,  14 
to  be  summoned.  24 
may  waive  summons.  22,.3o 
how  served  when  more  than  one,  28 
how  to  be  summoned,  29 
attorney  appointed  for  absent,  31 
non-resident,  absent  or  concealed,  30 
when  there  are  two  or  more.  32 
several  liability  against,  32 
pleadings  of.  38 
may  demur  to  complaint.  40 
to  be  served  with  amended  complaint,  43 
answer  to  complaint  by.  46 
to  deny  signature  under  oath,  53 
may  be  arrested,  73 
may  be  discharged  from  arrest,  80 
may  surrender  himself  on  arrest,  95 
may  move  to  vacate  arrest,  97 
to  reduce  bail,  97 
may  except  to  replevin  bond,  103 
may  bond  property  replevied,  104 
attached,  123.136 
judgment  for,  on  attachment.  135 
iiiav  move  to  discharge  attachment,  148 
ju<rgmeiit  rendered  for.  199 
judgment  for,  in  usurpation  of  office,  312 
steamer  or  boat  may  be,  318,326 
to  verify  confession"  of  judgment,  375 
to  recover  costs.  497 
(In  Jiistirt.t'  Courts.) 
to  be  sumnn)ne(I.  540 
how  to  be  served.  542 
may  be  arrested.  546 
mav  demand  immediate  trial,  549 
how  discharjied  from  arrest,  549 
may  give  bail,  550 

Defensk.s— 

prejudice  to,  in  action  by  assignee,  5 

new  matter  constituting,  46 

answer  nuiv  set  up  several,  49 

each  shall  l)e  separately  stated,  49 

may  be  demurre*l  to.  50 

slinm  and  irrelevant,  stricken  out,  50 

to  a  written  instrument,  54 

to  libel  or  slander,  63 
(In  ./n.>7(>(,?'  Courts.) 

may  be  ])leaded,  574 
seeANSWER. 

Delinquent — 

bidder  at  execution  sale.  224.225 

Delivery— 

of  i)roperty  purchased   at  execution 

saV',  227.228 

Demand— 

witness  on  assignment  of  unliquidated.    4 

Demurrer- 

to  complaint  and  answer  to  be  plead- 
ings, as 
causes  of.  to  complaint.  40 
sliall  specifv  grounds.  41 
when  may  he  disregarded.  41 
may  be  to  whole  complaint,  42 
may  be  tiled  with  answer,  42 
to  answer  and  defenses,  50 


REFER  TO   SECTIOKS.] 


INDEX. 


291 


Demurrer,  (ron(i«"»'rf.) 

to  iiisulliciency  of  new  matter,  50 
wlieu  overruled,  answer  may  be  filed,     67 

to  answer,  38,50,67 

time  may  be  enlarged  for  tiling,  68 
(7/1  J)isticts'  Courts.) 

to  pleadings,  "'° 

Denial — 

of  allegations  in  complaint,  46 
of  genuineness  of  signature  in  written 

instrument,  52,54 

Deposit—                                   ,  ^^  „. 
defendant  arrested  may  make,  bO.yi 
may  be  returned  on  giving  bail,  93,94 
in  court,  }^^ 
of  surplus  in  court  on  foreclosure.        Mi 
in  court  on  appeal,  348,356 
on  interpleading,  658 
{In  Justices''  Courts.) 
for   costs,  may  be  required    by  jus- 
tice, 634 

Depositions—  428-442 
(In  .lu.^tices'  Courts.) 

may  be  issued  by  justice,  620 
see  Witness. 

Deputy— 

sheriff  to  serve  summons,  28 

constable  may  be  appointed.  613 

Detainer— 

damages  for  unlawful,  trebled,  253 

DlSAr,ILITY — 

of    a   party    will    not   cause    abate- 
ment, 16 

Disbursements—  494-514 
see  Costs,  Fees. 

Discontinuance — 
see  Dismissal. 

Discovery — 

action  to  obtain,  417 

Dismissal — 

of  an  action,  148,157,514 

court  may  enter,  148 
of  appeal,                               rule  iv,  346,365 
{III  Justicf.'i''  Courts.) 

of  an  action,  586,591 

Disobedience— 

of  order  of  referee,  275 

of  subpoena,  409 

of  writ  of  mandate,  479,480 

of  a  lawful  writ,  480 
{In  Justices'  Courts.) 

of  a  lawful  writ,  616 

Disqualifications — 

of  judges,  p.  28 

ot  jurors,  162 

of  referee,  185 

Districts — 

judicial,  judges  of,  p.    7 

terms  of  courts  in,  p.    8 

in  this  state,  p.  12 

Dlstrict  Courts — 

judges  of,  p.    7 

terms  of,  p.    8 

organic  act,  p.  12 

jurisdiction  of,  _         p.  14 

commencement  of  civil  actions  in,  22 

appeals  from,  347-358 

judges  of,  bow  paid,  509 
may  order  arrest  of  usurper,  311 

testimony  of  prisoner,  412 

Docket — 

judgment,  204-207 
copy  of,  on  redemption,  requisite,         234 
{In  Justices''  Courts.) 

judgment,  what  to  contain,  604 

Documents —  446-454,656 
SOP  Writings. 

Duces  Tecum — 

subpoeua  requiring,  402 


E. 

Embezzlement — 

arrest  on,  73 

{In  Justices''  Courts.) 
arrest  on.  •  544 

Entry —  « 

damages  for  unlawful,  trebled,  253 

Errors— 

when  to  be  disregarded,  71 

of  law,  ground  for  new  trial,  193 

in  transcript  on  appeal,  rule  xiii. 

writ   of,  to  supreme  court, 

rules  xxvi  to  xxx. 

Evidence — 

postponement  of  trial  on  absence  of     158 
new  trial  on  newly  discovered,  193 

insutficient,  193 

of  written    documents    and   judg- 
ments, 446-453 
{Injustices^  Courts.) 
of  written  instrument  on  trial,  576 
adjournment  for  absence  of,  684 

Exceptions — 

to  report  of  referee,  187 

what  is  an,  188 

point  of,  to  be  stated,  189 

to  be  noted  by  judge,  189 

no  particular  form  required,  190 

to  be  brief,  190 

when  decision  not  immediately  given,  191 
to  sufficiency  of  sureties,  103,.355 

{In  Justices''  Courts.) 
to  sufficiency  of  sureties,  560 

Excess- 

on  foreclosure  judgment,  to  be  paid 

over,  247 

judgment  for  defendant  on,  of  set-off,  199 
{In  Justices''  Courts.) 
of  jurisdiction  to  be  remitted,  595 

Execution — 

for  residue  in  attachment,  133 

when  to  issue,  209 

how  to  issue,  210 

joint  and  several,  211 

when  returnable,  212 

to  enforce  judgment,  213 

after  five  years,  214.600 

after  death,  215 

may  be  issued  to  any  county,  216 

levy  under,  217 

claim  by  third  person  under,  218 

sheriff's  jury  to  determine  claim,  218 

property  exempt  from,  219 

shall  levy  on  sufficient  property,  220 

notice  of  sale  under,  221 

selling  without  notice,  222 

property,  how  sold  under,  223 

when  purchaser  refuses  to  pay  bid,       224 
against  delinquent  bidder,  225 

officer  not  liable  for  delinquent's  bid,  226 
deliverv  of  personal  property  pur- 
chased under,  227,228 
redemption  of  real  property  under,  229 
certificate  of  sale  of  real  property  un- 
der, 229 
who  may  redeem,  230 
how  redemptiou  effected,  231 
redemption  from  redemptioner,  232 
when  sale  absolute,  232 
payment  on    redemption,   to    whom 

made,  233 

papers  to  be  served  by  redemptioner,    234 
proceedings  supplementary  to,  238 

examination  of  judgment  debtor  un- 
der, 2.39 
levy  on  credits  of  judgment  debtor,      241 
injunction  to  restrain  waste  before  con- 
veyance uudw,  235 


292 


INDEX. 


[THESE  ^•l•MBERS 


Execution,  (Continued.) 

tiamaj,'<?s  for  injury  to  be  recovered  by 

j)iiicliaser  under,  202 

may  issue  for  costs,  GOo 
[Injustices'  Courtx.) 

may  be  issue^d  before  five  years,  ©H) 

to  whom  directed,        ^  601 

how  enforced,  602 

not  to  have  blank  left  in,  611 

Executor— 

see  ADMIM8TRATOR, 

Exemption— 

from  execution,  219 

Exoneration — 

of  bail,  82,83 

F. 

Fact— 

statement  of,  to  be  in  complaint.  39 

on  motion  for  new  trial,  1% 
on  apijcal,  3^iS 

to  be  settled  by  judge,  195,338 
omitting  to  make  a,  399 

to  be  signed  bv  judge,      341 
to  be  annexed  to  judg- 
ment roll,  342 
on  appeal   to  county 
court,  36" 
demurrer  to  want  of  sufficient,  40 
objection  to  want   of  sutticient,  not 

waived,  45 

issues  of,  153 

separate  finding  of  decision  of  180 

to  be  sctted  on  submission  of  contro- 
versy, 377 
see  Issues. 
Father — 

may  sue  for  injury  or  death  of  child,      11 
Fees— 

of  witness  to  be  tendered.  .404 

of  refe)-ees,  504 

see  Costs. 
Fines — 

of  public  officers  to    be  stopped  in 

hands  of  comptroller,  479 

for  contempt,  493 

for  usurpation,  316 

for  disobedience  of  mandate,  479 

see  Contempt,  DisonEDiENCE. 
Forcible  Entry  and  Detainer.  p.  27 

Foreigners— 

to  have  interpreter  wlien  witnesses,      401 
to  liave  subpicna  explained,  646 

FORECLOSUUK—  I 

of  mortgage  or  lien,  246-248 

sale  of  property  under,  246 

surplus  after  sale,  247 

when  debt  not  entirely  due,  248 

must  be  enforced,       '  260  ■ 

Franchise—  | 

usurj)ation  of,  310-316 

see  Office. 
Fraud— 

arrest  in,  73 

[In  Just  ires'  Courts.) 
arrest  in,  544 

Future — 

tense  is  included  in  present,  647 


G. 

Ci-\RMf<IIMKNT — 

how  executed,  125,126 

liability  of  garnishee,  127 

garnishee    may   be    examined  under 

oath,  128 


Guardian — 

when  to  appear  for  ward  or  infant,  9 

how  appointed,  9,10 

may  sue  for  injury  or  death  of  ward,      11 
may  be  sued  for  committing  waste.        250 
in  partition  of  real  property,  securi- 
ties for  infants  to  be  taken  in  name 
of.  289 

to  receive  proceeds  for  infant.  305 

to  receive  proceeds  for  insane  person,  306 
may  consent  to  partition,  307 

{In  Ju.stices'  Courts.) 
to  be  appointed  by  justice,  539 

H. 

Highways— 

timber  used  to  repair,  not  waste,  252 

Husband — 

when  to  be  joined  with  the  wife,  7 

cannot  be  witness  for  wife,  395 


Inadvertence— 

relief  from  judgment  through,  68 

Indians— 

not  to  be  witnesses,  394 

Infant — 

shall  sue  bv  guardian,  9 

how  guardian  appointed  for,  9,10 

how  summoned,  29 

securities  of,  to  be  taken  in  the  name 

of  guardian,  289 

guardian  to  receive  proceeds  of  sale 

for,  305 

cannot  be  a  witness,  3"J4 

{In  .Tustices'  Courts.) 

appointment  of  guardian  for,  539 

how  summoned,  542 

Injunction— 

what  is  an.  111 

by  whom  granted.  111 

how  enforced.  111 

•when  to  be  granted,  112,113 

onlv  to  be  granted  on  verified  com- 
plaint, 112.113 
how  served,  112.113 
not  allowed  after  answer  without  no- 
tice. 114 
undertaking  on,  115 
order  to  show  cause  why  writ  should 

not  issue,  116 

against  corporations,  117 

by  the  people  of  the  state,  117 

application  to  dissolve  or  modify,  118 

to  restrain  waste  until  redemption,  235.2»>1 
during  foreclosure,  261 

appeal  from  order  granting  or  dissolv- 
ing, 336.347 
Injuries — 

joining  of  actions  for,  to  character, 

person,  or  i)roi)erty.  _      64 

arrest  may  be  had  for,  73,544 

Insanity- 

how  insane  person  summoned.  29 

an  objection  to  wituess,  329 

{In  Juslirr.s^  Courts.) 

how  insane  persons  guminoned  542 

Instructions- 

to  jury  before  retiring,  165 

after  retiring,  168 

Instruments— 

when  written,  used  as  evidence,      446-454 

see  Writings. 
Intkrpi.ea— 

when  allowed,  658 


KEFER  TO  SECTIONS.] 


INDEX 


293 


659-662 


Ikteiipuetek — 
to  be  sworn, 

lNTEUm>«ATORIES — 

see  Witness. 
Intervextion — 

when  allowed, 
Irregularity — 

of  proceeclinjj.s  a  jiround  for  new  trial,  193 

eviction  of  purchaser  through,    237 

Irrelevakcy — 

to  be  stricken  out, 
Issues— 

of  fact  and  law, 


57 


151 
date  of.  to  regulate  cause  on  calendar,  156 

157 
271 
373 
472 
153 
153 


how  brou^iht  to  trial, 
in  partition  suits, 
tried  against  joint  debtors, 
tried  on  application  for  mandamus, 
of  fact  on  allegation  in  complaint, 
on  new  matter  in  answer, 
to  be  tried  by  jury,  referee  or 

court,  ■  155,182 

trial  of,  by  jury  may  be  waiv- 
ed, 179 
trial  of,  by  the  court,  180 
of  law,  on  demurrer  or  answer,  152 
tried  by  the  court  or  ref- 
eree,                              154,181,182 
to  be  first  disposed  of,  155 
Items— 

of  account  need  not  be  set  forth  in 
pleadings,  56 

'    J. 

Joinder — 

of  several  causes  of  action,  when  al- 
lowed, 64 
Joint  Debtors — 

summons  against,  32 

execution  against,  211 

summoned  to  show  cause,  368,370,371 

requirement  of  summons  against.  369 

not  necessary  to  tile  new  compiaiut 

against,  369 

if  defendant  deny  judgment,  372 

issues  against,  to  be  tried,  373 

judgment  to  be  for  balance  due,  373 

{In  Justices''  Courts.) 
judgments  against,  594 

Judge — 

when  disqualified,  p.  28 

when  disqualified  may  change  place  of 

trial,  21 

may  order  items  of  account,  56 

to  issue  order  of  arrest,  74 

to  note  exceptions,  189 

to  examine  judgment  debtor,  239 

—salary  to  be  paid  from  court  tax,  509 

may  order  arrest  of  usurper,  311 

may  order  testimony  of  prisoner,  412 

see  Court. 
Judgment — 

alias,  when  recited  in  pleadings,  59 

relief  from,  through  mistake  or  sur- 
prise, 68 
defendant  may  be  arrested  before,  77 
may  be  arrested  after,  239 
satisfaction  of,  on  attachment,  132 
is  the  final  determination  of  rights  of 

parties,  144 

may  be  entered  in  term  or  vacation,  144 
may  be  for  or  against  one  or  more,  145,146 
relief  consistent  in  the  case,  may  be 

f  ranted  by,  147 

en  to  be  rendered  on  the  merits,       149 
by  default,  150 

upon  account  stated,  150 


Jitdoment,  (Continupii.) 

by  default,  re(|uiring  proof,  150 

on  i)ublicution  of  summons,  150 
when  to  be  entered,  197 

for  defendant  for  excess  of  set-off,  199 
for  possession  of  personal  property.  200 
book,  201,376,378 

not  to  be  a  lien  in  case  of  death,  202 

roll,  203 

docket  and  lien,  204-207 

satisfaction  of,  208 

execution  upon,  209 

to  be  enforeiMl  by  execution,  213 

when  ontilied  copy  to  be  served,  213 

execution  upon,  after  five  years,  214 

after  death.  215 

against  delinquent  bidders,  225 

creditors  may  sue  for  debts  due,  244 

when  right  of  plaintilf  to  real  prop- 
erty has  terminated,  256 
on  usurpation  of  office,  for  defendant,  312 
against  defendant,  316 
against  steamers  or  boats,  328 
may  be  reviewed  on  appeal, 333,347,359,366 
against  one  or  more  of  several  per- 
sons,                                                        368 
denial  of,  by  one,  372 
to  be  for  surplus,  378 
by  confession,                                     374-376 
how  entered,  374 
statement  in  writing  of,              375 
statement  to  be  filed,  376 
on  submission  of  controversy,  377 
to  be  entered  in  judgment  book,  378 
may  be  enforced,  379 
on  award  of  arbitrators,                    382.385 
upon  offer  to  compromise,  390 
on  writ  of  certiorari,                                 499 
on  writ  of  mandate,                           477,464 
to  include  costs,                                         511 
on  indemnity  bond  to  sheriff,  645 
(Injustices'  Courts.)                                    591-595 
by  confession,                                               536 
by  default,  586 
to  be  entered  up,                                       594 
may  be  certified  to  county  clerk,  599 
see  DISMISSAL,  Kon-Suit,  Default, 
Execution. 
Judicial  Days —                                       p.  29 
Jurisdiction— 

of  court  acquired  by  service  of  sum- 
mons, 35 
demurrer  to  want  of,  40 
objection  to,  never  waived,  45 
in  alias  judgment,                                      gS" 
[In  .Justices^  Courts.)  ,    - 
of  justice,                                                    535 
how  waived  by  appearance,                    537 
Jurors — 

how  summoned,  159 

number  of,  159 

oath  of,  160 

challenge  to,  161 

unqualified  by  statute,      162 
for  consanguinity  or  af- 
finity, 162 
for   immediate   connec- 
tion, 162 
for  serving  on  previous 

trial, 
for  interest, 
for  opinion, 
for  enmity  or  bias. 


illness  of 
verdict  of, 

when  to  be  a  witness, 
(In  Justices''  Courts.) 
who  shall  be, 
challenge  to. 


162 
162 
162 
162 
164 
174 
400 

587 
590 


294 


INDEX. 


[TnSSE  MUVBESS 


Jury— 

to  try  questions  of  fact  not  iu  issue,  3 

of  slicriff  in  attaclinieitt,  131 

ou  fxc'cution,  218 

to  try  issues  of  tact.  155 

formation  and  number  of,  159 

oath  of,  160 

chalienjie  to  the,  161 

charge  to  the,  165,168 

deliberation  of.  166,167 

discharf^e  of,  169 

by  adjournment  of  term,       170 

scaled  verdict  of,  170 

return  of,  after  verdict,  171 

pollin;.'  of,  171 

correction  of  verdict  of,  172 

record  of  verdict  of.  173 

to  lind  general  or  special  verdict,     174.175 

trial  by,  may  be  waived,  179 

(//I  Justin s'  Courts-) 

trial  by.  587 

empaniiclinp  of,  688 

(In  RiTDrilers^  Courts.) 

trial  by,  639 

Justice  of  the  Peace — 

act  orfianizinj:,  p.  23 

to  try  suits  against  delinquent  bidders,  224 
when  a  witness,  582 

in  arrest  case,  '    545 

to    have    power    over   predecessor's 

docket.  608 

successor  in  office  of,  610 

disability  or  sickness  of,  612 

to  receive  and  pay  out  all  moneys,        633 

Justices"  Coukts—  " 

orfianic  act,  p.  23 

jurisdiction  of,  p.  23 

of  proceedings  in  civil  cases  in,      633-635 

action  to  be  broujiht  in  township,         535 

how  commenced,  538 

adjournment  of  cause,  549,580,585 

undertakinjf  on,  585 

affidavit  of  absent  defendant,  543 

on  arrest,  545 

on  iittachmeut,  652 

on  claim  of  personal  prop- 

ertv,  557 

for  ne%v  trial.  623 

aTOendments  nniy  be  allowed,  578.680 

answer  to  summons,  535 

wlnit  to  contain,  670.574 

to  deny  sifinature  to  instru- 
ment, 577 
appeal  to  county  court,               366,624-629 
ni)j)earance  of  parties  may  waive  juris- 
diction, 637 
arrest  of  defendant,  644 
nllidavit  on,  545 
underfakinjr  and  bail  on,         545,550 
adjournment  of  cause  on,       549.582 
jucl;r"ieiit  on  civil,                    694,597 
judfrmciit  for  contempt,  617 
attachnieiit  may  be  issued,                          551 
affidavit  on,                             552 
undertaking  on,                     653 
undertakiiij;  to  release,        554 
attorney  in.  who  may  be.                          534 
bail  of  "arrested  <le(endant.                       5.'>(l 
blank  not  to  be  left  in  papers,                  611 
challeniie  to  jury,                                        59^' 
claim   for  delivery  of  personal  prop-         | 
erty,                                                            556  ' 
bv  tlilril  i)erson  in,         5t)5  ! 
affidavit  ou,                      557 
undertaking  on,              .W 
iindertakitig  to  release,  .'>6l 
commissions  may  be  issued  in,                l>2it 
complaint,  what  to  contain.             570.573 
on  written  instrument,        577 


Justices'  Courts,  (Continued.) 

compromise,  ofl'er  to.  596 

concealment  of  property  from  officer,  563 
confession  of  judgment,  536 

constable  not  to  act  as  attorney,  634 

to  serve  summons,  542         ^ 

power  of,  after  term  has  ex- 
pired, 615 
may  appoint  deputies  613 
contempt  may  be  punished  by,  616 
continuance  of  a  cause.                     580-585 
corjjorations,  how  summoned,               542 
costs  to  be  entered  with  judgment,        598 
allowed  to  pre\-ailing  party,  631 
deposit  may  be  reciufred  for,         634 
counter  claim  may  be  pleaded,              576 
custom    may    be    proved    iu    mining 

claims.  621 

debtor,  examination  of  judgment,         002 

default,  judgment  by,  686.592 

I'.eieiidant.  to  be  summoned,  539 

how  to  be  served,  542 

may  be  arrested.  544 

maV    demand    immediate 

trial,  549 

how  discharged  Irom  arrest,  549 

may  give  bail,  550 

defenses  may  be  i)leaded,  674 

demurrer  topleadings,  578 

deposit  for  cost  may  be  ref|uired,  634 

depositions  may  be  authorized.  620 

deputy  constable  may  be  appointed,     613 

dismi.-isal  of  action,  686,591 

docket,  what  to  be  contained  in.  604 

evidence  of  written    instrument    on 

trial,  577 

adjournment  for  absence  of,      5S4 

exception  to  sureties  on  replevin  bond.  .OtiO 

excess  of  jurisdiction  to  be  remitted,    595 

execution  may  be  issued,  600 

to  whom  directed,  601 

how  enforced,  6f>2 

not  to  have  blank  left.  Oil 

{guardian  for  infant  to  be  appointed  by.  539 

infant  to  have  guardian  appointed,    '    5.39 

how  summoned.  542 

insane  person,  how  summoned,  542 

joint  defendant,  judgment  against,       594 

judgment  in.  591.5!:t9 

bv  confession,  536 

by  default,  586 

to  be  entered  up,  5il4 

may  be  certitied  to  county  clerk,  6!t9 

jurisdiction  of,  535 

how  waived,  537 

jurors,  challenge  to,  590 

jury,  trial  by.  6!^7 

empanneling  of,  588 

justice,  wlien  a  witness,  5S2 

in  arrest  case,       545 

to  have  power  over  predecessor's 

docket.  608 

disability  or  sickness  of,  612 

to  receive  and  pay  out  all  mon- 
eys, 633 
justitication   of  sureties  on  replevin 
bond,                                                 660.567 
on  release  of,  562 
lien  created  by  judgments,  59it 
mining  clainiii,  )>leading  to  be  verified.  571 
proof  in  actions  for.  (CI 
suit  for  determination  of,  651 
proceeds  ot'.  to  be  collected,              651 
receiver  to  take  charge  of.                 <>51 
nanu-  of  defendant,  how  nn>ntioned,    540 
new  trial  when  to  be  granted.                  622 
affidavit  and  notice  on,            (>23 
objection  to  pleadings,                               578 
otl'er  to  compromise,                                696 


REFER  TO  SECTIONS.] 


INDEX 


295 


JusTir-EP"  Courts,  (Cnntinued.) 

partii'S  may  appear  in  pi-rsou  to  plead,  534 
])lace  of  trial,  clianjic  ol',  582 

plaintid",  how  to  ooiiinieiicc  action,       538 
may  arrest  (li'l'i'iidant,  545 

to  1)('  notilied  of  arrest,  547 

name    of,   to    be    entered   on 
docket,  .        606 

pleadings  in,  570 

when  to  be  verified,  671 

when  may  he  oral,  572 

property,  claim  for  delivery  of  per- 
sonal, 556 
title  to  real,  not  to  be  tried  in,  581 
pnblication  of  snmmon.s,  543 
real  property,  title  not  to  be  tried  in,  581 
receiver  to  oe  appointed  for  mining 

claims,  651 

replevin  suits  in.  556 

attidavit  and  bond  in,  657,559 

release  bond  on,  561 

justilication  of  sureties  in,  560,562 

return  of  summons,  541 

San  Francisco,  jurisdiction  in  county 

of.  535 

set-otr  may  be  pleaded,  676 

sheritr  may  serve  summons,  542 

attachment,  554 

subpoena  may  be  issued  in,  619 

successor  of  justice  in  oftice,  610 

summons  may  be  waived  by  appear- 
ance, 537 
how  issued,  538 
how  addressed  and  what  to  con- 
tain, 540 
to  be  subscribed  by  justice,              540 
when  returnable,                                541 
by  whom  to  be  served,  542 
against  non-resident,                           543 
publication  of,  543 
not  to  have  blank  left  in,  611 
sureties  on  replevin  bond,  559 
on  replevin  release  bond,  561 
on  arrest  bond,  545 
on  attachment  bond,                         553 
tender  in  court,  596 
title  to  real  property  not  to  be  tried  in,  581 
third  person,  claim  by,  in  replevin,       565 
time  of  return  of  summons,  541 
township,  persons  held  to  answer  in,    535 
transfer  of  arrest  case,  546 
for  cause,  582 
undertaking  on  arrest,  545 
on  discharge  from  arrest,  550 
on  attachment,  553 
on  release  of  attachment,                 554 
on  replevin,  559 
on  release  in  replevin,                       561 
on  indemnity  in  replevin,                 565 
on  adjournment,  585 
variance  at  trial  between  allegata  et 

probata,  579 

venue,  change  of,  582 

witness,  when  justice  is,  582 

adjournment  for  absence  of,      584 

woman  not  to  be  arrested  in,  544 

Justification — 

of  sureties.  103,105,355,650 

{In  Justicts'  Courts.) 
on  replevin  bond  and  release,    560,562,565 
see  SuKETiES. 

L. 

Law — 

separate  finding  of  conclusions  of,  180 

new  trial  to  be  granted  for  errors  of,    193 
issues  of,  151 

see  Issues. 


Leasehold— 

when  subject  to  redemption. 
Lew— 


229 
209-234 


see  Execution, 

LlAUILITV  — 

several,  of  defendants  how  jirosecuted,  32 
ui)on  obligations,  15 

of  steamers,  vessels  and  boats,  317 

confession   of  judgment    to    contain 

statement  of,  376 

of  officer  arresting  witness,  416 

Libel — 

see  Slander,  62,63 

Lien— 

of  judgment,  202-207 

foreclosuie  of,  246-248 

certilicate  of,  in  partition  suits,  272 

parties  holding,  to  be  brought  into  ac- 
tion, 273 
when    on    an    undivided    interest   of 

property,  281 

to  be  satisfied  from  preferred  securi- 
ties, 284 
(In  Jiiftirfs''  Courts.) 
of  judgment,  599 
Limitation — 

against  foreign  causes  of  action,  532 

Lis  pendens — 

notice  of,  27,207,267 

Lost — 

evidence  of  documents,  447 


M. 

Mail— 

how  service  of  summons  made  by,  521,522 
(In  Just  ires'  Courts.) 

how  service  of  summons  made  bj',        643 

Mandate  or  Mandamus — 

writ  of,  466-479 

denomination  of  writ  of,  466 

bv  whom  issued,  468.653 

wiien  to  be  issued,  467,468,653 

to  be  alternative  or  peremptory,  469 

not  to  be  granted  by  default,  470 

answer  to  by  adverse  party,  471 

issue  on  answer  may  be  tried  by  jury,  472 
proof  of  applicant  on  trial,  473 

new  trial  may  be  allowed  on,  474 

certified  copy  of  verdict  to  be  sent  up,  475 
argument  may  be  had  without  jury 

trial,  476 

damages  and  costs  may  be  awarded 

applicant,  477 

how  writ  to  be  served.  478 

fine  or  imprisonment  for  disobedience 
of,  479 

Mariner — 

claim  of,  for  wages,  329,330 

Mark- 
Is  included  in  signature,  647 

Married  Women — 

when  her  husband  shall  be  joined,  7 

when  she  may  sue  alone,  7 

when  action  is  between  her  and  hus- 
band, 7,395 
may  defend  for  her  own  right,  8 
cannot  be  a  witness  for  husband,           395 

Matter — 

irrelevant    and    redundant,  may    be 

stricken  out,  57 

see  Xew  Matter — 

Mayor's  ( 'ourt— 

act  organizing,  p-  27 

jiroceedings  in  civil  cases  in,  636-642 

ai)])eal  from,  366 

Memorandum — 

bill  of  costs  and  disbursements,  510 


296 


I  X  D  E  X  , 


[THESE  KUMBERS 


58 
258 


Metes  and  Bouxds— 

wlifii  to  be  described  in  complaint 
inution  lor  survey  of, 

Mixes  am>  MiMNfi— 

pleatlinjrs  in  to  be  verified.  571 

proof  in  action  for,  621 

suits  for  determination  of,  651 

proceeds  of,  to  be  collected.  651 

receiver  to  take  charge  of,  651 

MiXOK— 

see  IXFA>'T. 
Mistake— 

relief  from  judgment  through.  68 
Modification— 

of  a  verdict,  1|2 

of  an  award,  387 

MORTGAOE- 

must  be  foreclosed,  260 
holder  of,  need  not  be  a  party  in  par- 
tition suit.  266 
see  FoUECLOSCRE. 

JIOTHER- 

w  hen  mav  sue  for  death  or  injury  ol 

child,   ■  11 
Motions— 

what  is  a  motion,  515 

where  to  be  made,  516 

written  notice  of,  517 
niay  be  transferred  to  another  judge.    518 

to  continue  action  by  successor  iu 

otllce,  18 
to  change  i)lace  of  trial,  21 
to  strike   out  sham  answer  and  de- 
fenses, 50 
irrelevant  and  redundant  matter,  5(^ 
to  vacate  arrest  or  reduce  bail,  97 
on  injunction,                                 114,116.117 
to  dissolve.  118 
to  set  aside  attachment.  l.'}8.139 
against  steamers.  327 
to  deposit  in  court,  1-42 
for  non-suit,  1;18 
to  postpone  trial,  158 
to  u|)point  referee,  183 
for  new  trial-,  193 
for  judgment  against  delinquent  bid- 
der, "             "  02i 
for  sale  on  foreclosure,  248 
for  survey  of  land,  2.58 
to  vacatean  order,  334 
for  judgment  against  joint  debtors,       368 
to  vacate  an  award,  386 
for  a  writ  of  review,  457 
of  alternate  mandate.  469 


N. 


Na-VE— 

of  parties  may  bo  amended, 
when  not  known  to  plaint itf, 
(/)/  Justice. s'   ('<iiirts.) 

of  defendant,  how  mentioned, 

NE(!I.ECT— 

relief  from  judgment  through  excusa- 
ble. 
New  Matter— 

how  to  be  pleaded, 

shall  be  deeme<l  controverted, 

is  an  issue  of  fact, 

when  testified  to  by  party  himself, 
New  TuiAi.— 

exceptions  on  motion  for,  189 

is  a  re-e.\amination  of  is«ue  of  fact, 

wlien  granti'd, 

when  applied  for  on  allidavit, 

notice  of  niolion  for, 

statements  unit  amendments  on. 

to  be  applied  for  early. 


540 


New  Trial.  ( Continued.) 

a  countv  court  may  order,  367 

appeal  from  order'on,  336.347 

on  issues  in  mandamus,  474 
(Injustices'  Courts.) 

when  shall  be  granted,  622 

affidavit  antl  notice  on.  '523 

NO>"-I{E.SIUENT— 

in   which    countv  may  sue    one    an- 
other,               "  20 
how  summoned.  dt) 
attorney  appointed  for,  31 
verification  in  suits  of,  55 
proi)erty  of,  may  be  attached.  120 
judgmeiit  by  default  against,  150 
in  partition' suits,  269 
to  give  security  for  costs,  512 
how  served  with  papers  after  appear- 
ance. 524 
(In  .Justices^  Courts.) 
how  summoned,  543 

NoN-.*<riT— 

how  privilege  to  move  for,  is  reserv- 
ed. 45 
judgment  of,  148 
costs  may  be  entered  on,  148 

Notes—       '  15 
see  Promissory  Notes. 

Notice — 

of  lis  pendens,  how  construed,  27 

of  motions,  517-519 

service  of,  520-522 

Nuisance — 

action  to  abate.  249 


o. 

Oaths — 

of  jurors,  160 

of  arbitrators,  3'^ 

administration  of,  443-W5 

by  arbitrators,  383 

who  shall  administer,  443 

persons,  how  sworn,  444 

atlirination,  how  given,  445 

see  Affidavits,  Sureties 

Objections— 

see  De.murrer,  Exceptions. 
(In  Justices'  Courts.) 
to  pleadings,  578 

Offer- 

to  compromise  or  allow  judgment,       39<) 
{In  Justices'  Courts.) 
to  compromise  or  allow  judgment,        596 

(Office- 

usurpation  of.  310-316 

to  be  brought  by  attorney  general,       310 
affidavit  as  to  receipt  of  fees,  311 

arrest  of  usurper,  311 

bail  of  nsurjjer,  311 

judgment  for  del'er.danf.  312 

execution  of  the  ofhce  by  person  enti- 
tled, 313 
person  entitled  to,  may  recover  dam- 

ages,  "  314 

action   may  be  had    against    several 

claimants,  315 

usurper  nnjy  be  fined.  316 

Officer,  runi.'ic— 

place  of  trial  in  action  against,  19 

when  recited  in  pleading,  59 

civil  arrest  of.  73 

when  to  be  a  witness.  3it9 

liability  on  arresting  witness,  416 

(/;i  Juslicr.<:'  Courts.) 
civil  arrest  of,  544 

Order  of  Aurest- 
see  AiutEST. 


REFER  TO  SECTIONS.] 


INDEX. 


297 


Order— 

may  be  appealed  from,  3o.i 

may  be  vacated,  334 

appeal  Irom,  343,344,347 

arbitration  may  be  entered  as,  3b2 

lor  prisoner  to  be  a  witness,  413 

what  is  an,  515 

Ordinanck — 

suit  for  violation    of,  in  Kecorders' 


courts, 


639 


Tarties— 

iu  civil  actions,  l-li 

in  interest  to  prosecute  action,  4 

when  to  be  brought  in,  16 

to  an  action  to  be  stated  in  summons,    24 
demurrer  to  another  action  between 

same,  40 

demurrer  to  defect  of,  40 

to  subscribe  pleadings,  51 

to  actions  to  determine  claims  to  real 
property,  254 

for  partition  to  real  property,  264 

may  submit  controversy  without  ac- 
tion, _  377 
may  be  made  witnesses,                     417-423 
refusing  to  attend  as  witness,  420 
(Injustices'  Courts.) 
may  appear  in  person  to  plead,  534 
Partition — 

of  real  property,  264-309 

see  rROPKRTY  Real. 
Partners—  423,656 

see  Copartners. 
People— 

verification  in  action  by  the,  5o 

injunction  by  the,  117 

action  in  the  name  of  the,  on  quo  war- 
ranto, 310 
Performance— 

of  conditions  of  contract,  how  pleaded,  60 
Perishable — 

propertv  to  be  sold,  130,221,654 

Personal  Property— 

see  Property,  Replevin. 
Persons— 

when  expressly  authorized  to  sue,  b 

of  insane  mind,  how  summoned,  29 

see  Parties. 
Physician- 

when  to  be  a  witness,  398 

'  Place — 

of  trial,  18-21 

court  may  change,  21,367 

appeal    from    order   refusing 
change,  336,347 

(Injustices'  Courts.) 

change  of,  58J 

Plaintiff- 
Is  the  party  complaining,  i 
all  having  interest,  may  be  joined,  12 
when  made  defendant,  13,14 
those  united  in  interest  to  be  joined,  14 
one  or  more  may  sue  for  the  benefit  of 

all,  14 

may  in  one  action  su^  persons  sever- 
ally liable,  15 
pleadings  of  the,  38 
demurrer  to  defect  of  parties,  40 
demurrer  to  answers  or  defenses,  50 
must  deny  signature  of  instrument  set 

up  in  answer,  54 

may  unite  causes  of  action,  64 

may  claim  delivery  of  personal  prop- 
erty, ^^ 
shall  make  aflSdavit  of  replevin  claim,  100 


Plaintiff,  (Cmitinucd.) 

may  re(iuire  sherilf  to  replevy,  101 
may  attach,  120 
when  not  to  recover  costs,  255 
when  right  to  real  property  has  termi- 
nated, 256 
to  recover  costs,  495 
(7ft  Justices'   Courts.) 
how  to  commence  a  suit,  538  • 
may  arrest  defendant,  545 
to  be  notified  of  arrest,  547 
names  of  to  be  indorsed  in  docket,        606 

Pleadings — 

nuestion  of  fact  not  in  issue  by,  3 
are  allegations,  36 
forms  of,  37 
shall  be  subscribed,  51 
form  of  verification  of,  55 
on  injunction,  112,113 
items  need  not  be  set  forth,  56 
irrelevant  and  redundant,  to  be  strick- 
en Out,  57 
when  a  judgment  is  recited,  59 
when  conditions  precedent  are  recited,  60 
when  private  statues  are  recited,  61 
of  parties  refusing  to  testify,  stricken 

out,  420 

of  interpleas,  658 

of  intervention,  669-662 
(Injustices''  Courts.) 

iu  what  con.sisting,  570-590 

when  to  be  verified,  571 

when  oral,  572 
see  Complaint,  Demurrer.  Answer, 
Justices'  Courts. 

Plural — 

number  included  in  singular,  647 

Postponement — 
see  Continuance. 

Present  Tense — 

to  include  the  future,  647 

Printing — 

is  included  in  writing,  647 

Prisoner — 

when  required  as  a  witness,  512 

Private — 

rights  and  wrongs,  redress  of,  1 

Probate  Court — 

act  organizing,  p.  22 
may  grant  permission  for  an  execu- 
tion, 21.5 
appeal  from,  363-365 
on  what  grounds,  363 
to  be  taken  within  thirty  days,    364 
to  be  brought  to  bearing,  365 
dismissal  of,  365 

Proceedings — 

supplementary  to  execution.  238-245 
see  Execution. 

Promissory  Kotes — 

action  on  assignment  of,  5 

several  liability  of,  15 

Property',  Personal— 

claims  to  recover,  64 

action  for  damages  or  detainer  of,           64 
arrest  for  concealing  or  disposing  of,      73 

claim  for  delivery  of,  99-111 

how  attached,  125 

claim  by  third  persons,  109,131,218 

judgment  for  possession  of,  200 

sale  of,  under  execution,  221 

perishable  to  be  sold,  130,221,654 
(In  Justices^  Courts.) 

claim  for  delivery  of,  556 
see  Replevin. 

Property.  Real — 

place  of  trial  in  actions  on,  18 

notice  of  lis  pendens,  27 

metes  and  bounds  to  be  set  out,  58 


298 


INDEX, 


CtHXSB  NTIIIBEBS 


Property,  Rkal,  {Contintifd.) 

joiiiiii;;  of  claims  to  recover  specific,       04 
action  for  damages  and  detainer  to.        <'A 
rents  and  prolits,  I'A 

how  attached,  12o 

value  of.  to  be  established  by  verdict,  177 
sale  of,  under  execution,  221 

title  to,  not  to  be  subject  to  arbitra- 
tion, _  380 
anions  on  ronflirtins  claims  to,  254-2H3 
by  whom  broujiht.  and  ai^ainst  whom,  2o4 
when  plaintiffshall  recover  costs,  2.55 
when  plaintiff's  right  to  recover  has 

terminated,  256 

value  of  improvements,  set-off  against 

damages,  257 

court  may  order  survey,  258 

liability  lor  injurv  of  surveyors,  259 

a  mortfiage  must^je  foreclosed,  2tiO 

court  may  enjoin  injury  during  action,  2G1 
damages  may  be  recovered  for  injury.  202 
alienation  will  not  prejudice  action,      2ti3 
action  for  pttition  of\  264-3f)9 

by  whom  and  against  whom  brought,  2G4 
interest  of  all  parties  to  be  set  lortliiu 

complaint,  265 

who  may  not  be  made  parties,  266 

lis  pendens  in,  267 

to  whom  summons  directed,  268 

liow  summons  served  on  non-residents,  269 
how  defendants  to  plead,  270 

how  rights  of  parties  to  be  tried,  271 

cortilicate  of  liens  to  be  produced,         272 
disposition  of  liens,  273 

trial  of  rights  of  liens,  274 

sale  to  be  made  when  partition  cannot 

be  had.  275 

how  i)artition  allotted.  276 

surveyor  may  be  employed,  276 

report  of  reteree  on  petitions,  277 

confirmation  of  report,  278 

judgment  upon  report,  278 

whom  judgment  shall  affect,  279 

fees  and  expenses,  how  paid.  380 

when  lieu  is  on  an  uudiviaed  inter- 
est, 281 
when  there  is  an  estate  for  life  in  an 

undivided  share,  282 

application  for  proceeds,  283 

when  securities  to  be  preferred,  284 

distribution  of  proceeds,  285,286 

sales  to  be  made  at  public  auction,  witli 

notice,  287 

credit  may  be  allowed,  288 

referee  may  take  separate  mortgage  for 

purchase  money,  289 

tenant   lor  lil'e  or  years  may  receive 

liis  proi>ortion,  290 

court  may  order  proportion  paid,  291 

when  tenants  are  unknown,  292 

vested  lor  future  contingent  rights  to 

receive  their  proj)ortion,  293 

terms  of  sale  shall  be  made  known  at 

time,  294 

no  referees  shall  be  interested  in  pur- 
chase. 295 
when  sales  to  be  void,  295 
report  of  sale  by  referee,  296 
relerec  to  execute  conveyances,  297 
purchaser's  receipt  may  IJe  taken  as  his 

projiortion,  298 

conveyances  to  be  recorded,  299 

proceeds  of  unknown   ovviicrs  to  be 

invested  in  securities,  300 

securities  to  be  in  the  name  of  the  clerk 
of^  the  county,  and  successors  in 
otiice.  301 

securities  on  sale  to  be  taken  in  name 
of  party  entitled  to,  302 


I^OPERTY,  Real,  (Continued.) 

clerk  to  keep  account  of  interest  re- 
ceived, 303 
court  may  adjudge  payment  by  one 

party  to  another.  304 

guardian  to  be  paid  proceeds,  305 

guardian  to  receive  proceeds  for  in- 

ssftie  persons,  306 

guardian  may  consent  to  partition,       307 
expenses  of  partition,  308 

one  referee  only  may  be  appointed,       309 
(In  Justices'  Courts.) 
title  not  to  be  tried,  581 

I*UBLICATION — 

of  summons  for  service  on  non-resi- 
dent, 30,269 
how  made  31 
proof  of  service  of,  33 
(7/1  Justices'  Courts.) 
of  summons,                                              543 
Purchaser — 

delinciueut  under  execution,  224,225 


Q. 


Question — 

of  fact  not  in  issue  by  pleadings, 

on  examination  of  witness. 
Quo  Warranto— 

writ  of,  310-316 

see  Usurpation. 


3 
434 


R. 

Real  Property — see  I^operty. 

Receiver— 

may  be  appointed  in  civil  actions^         14.3 
in  equity  pleadings,  143 
(In  Justices^  Courts.) 

in  mining  claims,  651 

Record— 

of  the  judgment,  207 

of  lis  pendens,  27,267 

Records- 

ins]>ection  of,  446-454 
evidence  of  judicial,                     449-462,655 

Recorders'  Courts- 

act  organizing,  p.  25 

appealfrom,  366 

commencement  of  actions  in,  636 

proceedings  in,  636-642 

Rede.mption— 

under  execution,  229 

how  afTected.  230.2;n 

who  mav  redeem,  230 

from  redemptioner,  232 

conditions  of,  232 

payment  on,  233 

papers  necessary  in.                   •  234 
purchaser  entitled  to  rents  during  time 

of,  236 

Redundance— 

may  be  stricken  out,  67 

Relief- 

summons  to   recite    demand    for,  in 

complaint,  24 

to  be  demanded  in  complaint,  39 

REMITTirrUR- 

clerk  of  the  Supreme  Court  to  send 

down,  358 
Reteree— 

to  examine  garnishee,  128 

to  as.sess  damages  on  default,  150 
to  try  issue,                             154,155,181,182 

to  ascertain  facts,  182 

objection  to,  (same  as  to  Juror,)  185,186 

report  of,  187 


REFER  TO  SECTIONS.] 


INDEX. 


299 


Referee,  (Continuerl.) 

exceptiou  to  decision  or  report  of,        187 

report  of,  to  be  special  verdict,  187 

exceptiou  at  trial  by,  191 

in  proceedii;gs  after  execution,  238 

to  examine  judgment  debtor,  239 

in  partition  to  real  property,  273,275 

to  ascertain  payment  of  lien,  274 

to  divide  and  allot  property,  276 

to  make  a  report,  274,277 

may  take  securities  for  credit,  289 

not  to  be  purchaser,  295 

to  report  on  sale,  296 

mav  take   receipt  of  purchaser  for 

his  property,  298 

one  only  may  be  ajipointed,  309 

to  tind  amount  of  mariners'  claim,        330 

fees  of,  504 

when  three,  all  shall  meet,  629 

Reference — 

may  be  ordered,  182 

how  ordered,  183 

number  to  compose  a,  184 
Rehearing — 

of  argument  in  supreme  court,    rule  xxiii 
Rents — 

and  profits  of  real  property,  64 
Repeal — 

of  statutes  648,666 
Replevin — 

suits  in,  99-110 

plaintiff  may  claim  delivery,  99 

shall  make  atlidavit,  100 

shall  give  undertaking,  102 

what  affidavit  shall  contain,  100 

sheriff  to  approve  bond,  102 

how  papers  served,  102 

defendant  mav  bond  property,  103 

may  except  to  plaintiff's  bond,  103 

sureties  of,  shall  justify,  105 

order  to  take  property,  101 

if  property  to  be  concealed,  107 

claim  by  third  persons,  109 

sheriff  to  take  property,  101,107,108 

to  file  proceedings,  110 

indemnity  bond  to  sheriff,  109 

Report — 

of  referee,  187,274,277 

exceptions  to,  187 
Respondent — 

is  adverse  to  appellant,  335 
Return — 

of  summons,  28 

of  order  of  arrest,  86 

of  replevin  papers,  110 

of  writ  of  attachment,  141 

of  execution,  212 
{In  Justices''  Courts.) 

of  summons,  541 

of  replevin  papers,  566 
Review— 

writ  of,  455-465 
see  Certiorari. 
Revocation — 

of  submission  to  arbitration,  382 

damages  for,  389 
Rights— 

redress  of  private,  1 

substantial,  not  to  be  effected,  71 
Rules- 

of  supreme  court,  p.  279 

s. 


Salary— 

243 

see  Wages. 

Sale— 

of  property  on  execution, 

221-223 

Sale,  (Continved.) 

certificate  of,  227-229 

of  foreclosed  property,  260 

of  proijerty  under  partition,  271 

disposition  of  proceeds,  283 

may  be  on  credit,  288 

terms  of  should  be  made  known 

at  time  of,  294 

referee  not  to  be  interested  in,         295 
Avhen  void,  295 

to  be  reported  by  referee.  296 

to  be  confirmed  by  court.  297 

of  vessels  under  execution,  328 

notice  of,  how  given,  331 

San  Francisco— 

jurisdiction  of  townships  in  county  of,  535 
Satisfaction— 

of  judgment,  208 

Seal — 

impression  of.  454,  p.  30 

Seamen — 

claim  for  wages  of,  329,330 

Sessions,  Courts  of — 

act  organizing,  p.  18 

terms  of,  p.    8 

Set- off — 

assignment  not  to  prejudice,  5,48 

definition  of,  47 

each  may  be  answered,  49 

verdict  on,  when  pleaded,  176 

judgment  by  default  on  excess  of,  199 

[Injustices''  Coitrts.) 
may  be  pleaded,  576 

Service — 

exclusion  of  day  of,  on  summons,  24 

of  notices  and  papers,  520 

by  mail,  521,522 

when  to  be  made  on  attorney,  523,524 

Sham — 

answers  and  defenses  to  be  stricken 
out,  50 

Sheriff— 

to  serve  summons,  28,542 

to  arrest  defendant,  77 

to  file  arrest  papers  in  court,  86 

responsible  if  defendant  escape  arrest,    96 

to  take  property  In  replevin,       101,107.108 

to  receive  indemnity  bond  in  replevin,  109 

shall  file  replevin  papers  in  court,  110 

of  any  county  to  serve  attachment,       123 

execution,         210 

to  execute  attachment  without  delay,  125 

to  take  inventory  of  property  attached,  129 

to  sell  perishable  property,         130,221,6-54 

to  collect  debts  and  credits  attached,    130 

levied  upon,  240 

jury  of,  in  attachment,  131 

on  execution,  218 

to  return  writ  of  attachment,  141 

to  summon  jury,  159 

to  keep  jury  together,  166 

to  levy  on  execution,  210 

to  return  execution,  212 

to  attach  steamers,  323 

to  serve  subpoena.  405 

judgment  on  indemnity  bond  to,  645 

(In  Justices''  Courts.) 

may  serve  summons,  542 

attachment,  554 

Signature — 

to  include  mark,  647 

Singular— 

number  to  include  the  plural,  647 

Slander— 

actions  for,  62 

answer  in  action  for,  63 

State— 

parties  not  residing  in  the,     20,30,120,130, 


300 


INDEX 


Ctbese  kcubbrs 


State.  {Continued.) 

verilication  by,  when  a  party,  55 
judicial  records  of  a.  61,449,453 
arrest  of  persons  deijartinp  from,  73,544 
atttacliincnt  on  contracts  made  or  pay- 
able in,  120.561 
aflidavits  taken  in  or  out  of,  424.427 
depositions  taken  in  or  out  of,  428-430 
cause  of  action  accruing  in  another,     532 

Stay  of  I'rockkiungs— 

may  be  granted  after  judgment,  197 

on  appeal,  349 

on  certiorari,  459 

{In  Justices''  Courts.) 

wlien  granted,  629 

Steam KK8 — 

actions  against,  317-332 

for  what  liable,  317 

when  may  be  directly  sued,  318 

verified  complaint  against,  319 

on  whom  served,  320 

may  be  attached,  321 

nndertaking  on  attachment,  322 

sheriff  shall  attach,  323 

bond  to  release,  324 

who  may  ai)pear  and  plead,  325 

proceedings,  how  conducted,  326 

motion  to  discharge  attachment,  327 

sale  of  under  execution,  328 

claim  of  wages,  how  asserted,  329 

how  contested,  330 

notice  of  sale.  3.31 

appeal  from  judgment  iu  action,  332 

Submission — 

of  controversy  without  action,  .377 

to  arbitration,  380 
see  CoNTROVKRSY,  Arbitration. 

SUBPtENA — 

may  require  attendance,  402 

books,  &c.,  402 

purposes  for  which  issued,  403 

now  served.  404 

when  witness  is  concealed,  405 

disobedience  to,  4f)9 

exonerates  from  arrest,  415 

{In  .Ju.'itirex'  Courl.f.) 

may  be  issued,  619 

SunscKiPTiON — 

to  pleadings,  51 
Substitution — 

in  cases  of  death  or  disability,  16 

of  real  party  defendant,  658 
Successor — 

of  justice  in  office,  610 
Summons, 

to  issue  on  or  after  filing  complaint,       22 

directed  to  defendant,  23 

to  be  under  seal,  23 

what  to  contain  and  require,  24 

to  state  court,  county  and  party,  24 

to  reiiuire  defendant  to  answer,  24 

to  state  sum  and  relief  demanded,  24,26 

day  of  service  excluded,  24 

what  constitutes  waiver  of.  22 

how  to   be  served  and   returned  as 

served,  28,30 

in  attachment,  141 
may  he  served   by  sheriff,  deputy,  or 

any  comnetent  witness,  28 

how  servcM  on  corporation.  29 

on  minor  or  insane  person,  2SI 

on  defendant,  29 

on  non-resident,  30 

liy  ])ublication,  ,30 

to  he  deposited  in  post  otHce,  31 

how  service  of,  to  Ite  proved,  33 

admission  of  service  of,  83 

certificate  of  service,  34 

appearance  of  defendant  is  service  of,     35 


Summons,  {Continuerl.) 

service  of  gives  jurisdiction,  35 

order  of  arrest  mav  accompany.  77 

when  issued  in  replevin,  99 
order  of  injunction  may  accompany,    113 

to  partition  .^uit,  268 

iu  action  against  steamer,  320 

against  joint  debtors,  368-372 
service  of  authorizes  commission,  428,  432 

to  be  explained  to  foreigner,  &i6 

to  be  in  Spanish,  646 

against  co-partners,  656 
{In  Justire.t'  Courts.) 

may  be  waived  by  appearance,  537 

how  issued,  538 
how  addressed  and  what  to  contain,     640 

to  be  subscribed  by  justice,  540 

when  returnable,  541 

by  whom  to  be  served,  542 

against  non-resident,  643 

not  to  have  blank  left  in,  611 

{In  Recorders'  Courts.)  637 
Supplementary — 

j         proceedings,  238-245 
{In  Justices'  Courts.) 

j         proceedings.  602 

I        see  Execution. 

I  Supreme  Court— 

i         act  organizing,  p.  9 

judges  and  terms  of,  p.  6 

jurisdiction  of,  p.  10 

appeals  to,  347-3*32 

judge  of  may  arrest  usurper,  311 

may  order  testimony  of  prisoner.  412 

clerk  of  to  send  down  remittitur,  358 

appeal  to  from  writ  of  review,  465 

decisions  of  to  be  written,  6.57 

may  make  rules,  643 

rules  of.  p.  279 
Sureties — 

Several,    liability    of    on    notes  and 

bills,  15 

on  arrest.  76,  81 
in  replevin,                                    102-106.  109 

iu  attachment,                            122,  123,  137 

against  stieamer,  322 

on  release  of  steamer.  323 
on  appeal  bond,            &t8-.350,  352,  355,  356 

on  release  bond  for  contempt,  485 

on  bond  for  costs,  512 
may  compel  by   action,  payment  of 


bond. 

527 

justification  of. 

650 

on  writ  of  error,                          rule  xxvii. 

{In  Justices'  Courts.) 

on  arrest  bond. 

545 

on  attachment  bond. 

553 

on  replevin  bond. 

659 

on  rejjlevin  release  bond, 

661 

Surgeon— 

when  to  be  a  witness. 

398 

Surplus— 

money    on    foreclosure    to    be 

paid 

over, 

247 

Surprise— 

relief  from  judgment  through, 

68 

a  ground  for  new  trial. 

193 

SURVKV- 

of  disputed  land, 

258,  259 

of  partition  land, 

276 

Tax— 

of  causes  to  be  paid  judges  for  salary,  600 
Tknants— 

joint,  tenants  in  common,  for  life,  for 
years,  290 


REFER  TO  SECTIONS.] 


INDEX 


301 


Tknants.  (  Continued.) 

see  I'ROl'ERTY,  Keal. 

see  Partition  of  Kkal  I'kopkrty. 

I'^NDKR— 

of  money  on  redemption,  233 

before  suit,  506 
[In  Jii.tt ires'  Courts.) 

in  court,  596 
Testimony— 

clerk  to  take  down,  663 
of  wituess  to  be  taken  on  iiostpoue- 

ment,  664 

on  deposition,  428^42 
see  Witness 
Thing  in  Action — 

witness  on  assignment  of,  4 

action  by  assij^nee  of,  5 
Third  Persons — 

claim  of,  in  replevin,  109 

in  attachment.  131 

on  execution,  218 
{Injustices^  Courts.) 

in  replevin,  565 
Time— 

for  pleading  may  be  enlarged,  68 

for  appeal               do  340 

for  arbitration  to  be  fixed,  383 

computation  of,  in  this  Act,  530 
Township — 

persons  held  to  answer  in,  535 
Transcript — 

tiling  of,  in  supreme  court, 

rule  ii  to  xiii. 
Transfer— 

of  causes,  on  motion,  21 
(In  Justices'  Courts.) 

of  arrest  cases,  546 

when  the  justice  is  a  witness,  582 
Trial— 

of  isssue  of  facts  not  in  pleadings.  3 

place  of,  18,  21 

after  illness  of  juror,  164 

of  action  after  jury  disagree,  169 

by  jury  may  be  waived,  179 

exceptions  at,  188-191 

see  New  Trial,  Place  op  Trial, 
Exceptions. 
Trustee — 

when  may  sue  by  himself,  6 

who  is  a,  6 

claims  against,  may  be  joined,  64 

may  deposit  funds'in  court,  142 

appeal  bond  in  suit  by,  353 

when  to  pay  costs,  507 

u. 

Undertaking! — 

on  arrest,  76 

justification  of  sureties,  76 

on  discharge  Irom  arrest,  81 

disposition  of,  on  arrest,  86 

in  replevin,  102 

to  bond  goods  replevied,  104 

of  indemnity  in  replevin  to  sherifl",        109 

on  claim  of  third  person,    131,  218 

on  injunction.  115 

on  attachment,  122 

to  release  attachment,  123, 136 

may  be  prosecuted,  134 

justification    oli   sureties    on  release 

bond.  137 
of  plaintiff  to  be  delivered  to  deft.,  135 
on   release  from  arrest  of  judgment 

debtor,  239 

on  attachment  against  steamers,  322 

on  release  of  steamers,  323 

on  appeal  to  Supreme  Court,  348,  356,360 


Undertaking,  ( Continued.) 

on  discharge  for  arrest  for  contempt,    4S5 

for  costs  by  non-resident,  512 
on  writ  of  error,                          rule  xxvii. 
(In  Justice.t'  Courts.) 

on  arrest.  545 

on  discharge  from  arrest,  550 

on  attachment.  553 

to  release  attachment,  554 

on  replevin,  559 

on  release  of  replevin,  561 

of  indemnity  in  replevin  suit,  565 

on  adjournment,  585 

Unknown — 

when  defendant's  name  is,  69,  540 
when  persons  interested  in  real  prop- 
erty are,  265 

Usurpation — 

of  oflSce,  310-316 
see  office. 


V. 

Vacation — 

courts  may  issue  writs  of  certiorari 
and  mandate  in,  653 

Variance — (In  Justice.i^  Courts.) 

between  allegata  et  probata,  579 

Venire — 

see  Jurors,  Jury. 
Venue— 

see  Place  of  Trial,  18-21 

(In  Justices'  i..ourts.) 
change  of,  582 

Verdict — 

sickness  of  juror  before,  164 

conduct  of  "juror  before  rendering,        166 
jury  may  bring  in  sealed,  170 

agreement  upon,  171 

court  may  correct,  172 

clerk  shall  record,  173 

is  general  or  special,  _     174 

what  is  a  general  or  special.  174, 175 

to  establisn  amount,  176 

value  of  property  and   dam- 
ages, 177 
when  right  of  plaintiff  to  real  prop- 
erty is  terminated,  256 
against  joint  debtors  for  surplus,  373 
Verification — 

of  pleadings,  51 

when  answer  need  not  have,  52 

form  of,  55 

on  injunction,  113 

against  steamer,  319 

to  confession  of  judgment,  375 

to  bill  of  costs,  510 

Vessels- 

see  Steamers.  317-332 

Violation — 
(In  Recorders'  Courts.) 

of  ordinance,  suits  for,  639 


Wages— 

when  subject  to  execution,  243 

Ward — 

see  Infant,  Guardian,  9-11 

Waste— 

actions  for,  249-253 

Wipe— 

see  Married  Woman,  7 

Withholding — 

see  Detainer,  64,  253 

Witness — 

on  assignment  of  chose  in  action,  4 


302 


INDEX 


WlTNEPP.  (Contintieri.) 

convenience  of,  may  change  venue,        21 
may   be    examined    in    challenge   to 
jurors,  163 

to  referees,  186 

on  arbitration,  383 

before  jury  on  claim  of  third  persons,  218 
in  jreneral,  391-554 

all  persons  may  be,  391 

who  shall  be  excluded  as,  392 

true  test  of  interest,  393 

adverse  party  to  be,  393 

who  shall  not  be,  394 

husband  and  wife  as,  395 

how  sworn,  443 

to  be  examined  on  postponement  of 

cause,  664 

when  attorney  shall  not  be,  396 

when  clergyman  shall  not  be,  39" 

when  physician  shall  not  be,  398 

when  public  officer  shall  not  be,  399 

judfre  or  juror  may  be,  400 

interpreter  for,  401 

manner  of  compelling  attendance 

of,  402-416 

eubpcena  may  be  duces  tecum,  402 

when  to  be    served  out  of 

the  county,  402 

requirements  of,  403 

how  service  made,  404 

i'ees  to  be  tendered  with,         404 
sherifT  to  break  in  house  to 
serve,  405 

disobedience  of,  409 

punishment  on,       410 
damages  for,  410 

any  person  present  may  be  made,  406 

duty  to  attend  as,  407 

answer  of,  408 

as  to  conviction  of  crime,     408 
failure  of  to  attend,  411 

attachment  and  arrest  of  absent,  411 

when  confined  in  prison,  412 

order  for  his  testimony,       413 
in  the  county,  414 

to  be  exonerated  from  arrest,  415 

liability  of  officer  arresting,  416 

txamiiiation  of  parties  to  an  action,        417-423 
for  discovery,  417 

party  to  action  may  be,  418 

Iiis  evidence  may  be  rebutted,  419 

if  party  refuses  to  appear  as,  420 

party  in  his  own  behalf  may  rebut,       421 
any  person  benefited  may  be,  422 

when  co-partner8  may  be  for  them- 
e«lves,  423 


WlT>'ES9,  {Continufri.) 
testimony  by  deposition  in  the  State,        428-481 
in  what  cases  allowed,  428 

notice  to  be  served,  429 

affidavit  of  the  facts,  429 

time  of  notice,  429 

examination  on  deposition,  430 

testimony  to  be  directed  to  clerk  of  the 

court,  430 

depositions  read  after  death,  430 

once  taken  may  always  be  read.  431 
testimony  by  riepositinn  out  of  the  State,  432-436 
when  may  be  taken,  432 

how  commission  to  issue,  433 

interrogatories  to  be  prepared  and  set- 
tled, 434 
deposition  to  be  sealed  and  returned 
to  court,  435 
continuance  for  absence  of,  436 
proceedings  to  perpetuate  testimony,           437^42 
testimony  may  be  perpetuated,  437 
affidavit  on  application  for,                      438 
examination  to  be  taken,  439 
testimony  to  be  taken  and  filed,             440 
affidavit  to  show  compliance  with  stat- 

tutes,  441 

testimony,  when  to  be  used,  442 

(/;i  Justirfs'  Courts.) 

when  justice  is, 

adjournment  for  absence  of. 

Woman— 

how  to  sue  and  be  sued, 
{In  Justices'  Courts.) 
cannot  be  arrested, 
see  Married  Woman. 
Writ— 

of  attachment,  see  Attachment. 
of  certiorari,  see  ("ertiokari. 
of  arrest,  see  Akrebt. 
of  mandate,  see  Mandate. 
Writings— 

inspection  of,  446-454 

court  may  order  copy  of,  for  evidence,  446 
when  evidence  may  be  given  of  con- 
tents, 447 
evidence  of  lost  or  recorded,                  447 
alteration  in  to  be  accountecl  for,  448 
evidence  of  judicial,                    449,452,655 
of  courtj  450 
certificate  by  minister  or  consul  to  for- 
eign, 451 
evidence  of  statutes,  453 
how  seal  to  be  impressed  on,  454 
include  printing,  647 
Wronqb— 

redress  of  private,  1 


546,582 
584 


514 


DISTRICT    COURT    REPORTS 

OF    CALIFORNIA. 


Vol.  I.,  400  pages  bound  in  law  calf,  $6,00.  Vol.  II.  now  issuing  in  monthly  num- 
bers of  48  pages  each.     4th  number  now  in  press.     Price,  50  cents  each. 

The  undersigned,  having  completed  the  first  volume  of  the  District  Court  Reports, 
now  offers  the  same  to  the  profession,  and  is  issuing  the  numbers  of  the  second  volume 
which  will  comprise  the  decisions  of  the  year  1858. 

He  has  adopted  many  suggestions  made  to  him  by  the  bencli  and  profession,  and 
hopes  by  care  and  attention  to  enhance  the  value  of  each  succeeding  volume. 

Copies  sent  by  mail,  or  by  express,  on  receipt  of  the  subscription  price. 

For  sale  at  the  principal  book  stores  in  the  State. 

Address   HENRY  J.   LABATT, 
S.  W.  Corner  Montgomery  and  Commercial  Streets,  San  Francisco. 


OPIIVIOIVS  OF  THE  SAIV   FRAIVCISCO  PREii^im. 

[From  the  San  Francisco  Herald.] 

Labatt"8  Reports. — The  twelfth  and  last  number  of  the  first  volume  of  Reports  of  Cases 
determined  iu  the  District  Courts  of  California,  has  beeu  received  by  us.  Mr.  Labatt  has  ren- 
dered much  service  to  the  profession  of  which  he  is  a  member,  by  compiling  these  reports. 
They  will  supply  a  want  that  has  existed  up  to  this  time  iu  California,  namely:  a  vehicle  of 
communicating  to  lawyers,  at  an  early  moment,  in  reliable  shape,  the  decisions  of  our  District 
Courts,  as  they  are  made  by  the  Judges.  On  points  of  practice,  and  on  questions  that  the 
Supreme  Court  has  not  passed  upon,  the  opinions  have  great  weight  in  the  various'  Courts  ol 
original  jurisdiction.  We  consider  the  volume  just  completed  a  valuable  acquisition  to  the 
legal  science  of  this  State,  useful  not  alone  to  the  bar,  but  also  to  the  bench.  It  ought  to  find 
its  way  to  the  hands  of  every  lawyer  in  practice,  who  desires  to  be  put  iu  possession  of  the 
latest  decisions  given  in  our  tribunals.  The  first  volume  contains  about  400  pages,  aud  is 
provided  with  a  thorough  index,  making  reference  to  the  points  decided  and  title  of  cases  a 
matter  of  ease  and  convenience.  Mr.  Labatt  continues  the  publication  of  his  reports,  aud  his 
work  should  receive  the  patronage  its  merits  deserve. 


[From  the  Alta  California.] 

District  Court  Reports.— We  are  indebted  to  the  compiler,  Henry  J.  Labatt,  Esq.,  for 
the  twelfth  number  of  the  "  Reports  of  cases  determined  iu  tlie  District  Courts  of  the  State 
of  California."  It  exhibits  the  care  aud  attention  wliicli  has  been  bestowed  upon  this  publi- 
cation since  its  commencement. 


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